MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 27 2019, 8:39 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        George P. Sherman
                                                        Supervising Deputy Attorney
                                                        General
                                                        Andrew Kobe
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA
Dontez West and                                         November 27, 2019
Kyree Guajardo,                                         Court of Appeals Case No.
Appellants-Defendants,                                  19A-CR-414
                                                        Interlocutory Appeal from the
        v.                                              Madison Circuit Court
                                                        The Honorable David A. Happe,
State of Indiana,                                       Judge
Appellee-Plaintiff.                                     Trial Court Cause Nos.
                                                        48C04-1804-F2-1127
                                                        48C04-1805-F2-1267
                                                        48C04-1709-F4-2230
                                                        48C04-1805-F2-1268



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019                   Page 1 of 18
[1]   Dontez West (“West”) and Kyree Guajardo (“Guajardo”) (collectively “the

      Defendants”) bring this interlocutory appeal from the Madison Circuit Court’s

      denial of their motions to dismiss the criminal charges against them after their

      first trial ended in a mistrial. On appeal, the Defendants claim that a retrial

      would constitute double jeopardy and that the trial court therefore erred in

      denying their motions to dismiss. Concluding that a retrial does not subject the

      Defendants to double jeopardy, we affirm.


                                 Facts and Procedural History
[2]   On August 29, 2017, a “known source,” later revealed to be Eric Troutman

      (“Troutman”), informed officers of the Anderson Police Department (“APD”)

      that he had seen Tiras Johnson (“Johnson”) in possession of a “half brick” of

      cocaine, multiple firearms, and a safe believed to contain a large amount of

      cash at Johnson’s home on Beverly Court in Anderson, Indiana. Appellants’

      Confidential App. Vol. 3, p. 148. A subsequent search of Johnson’s home

      revealed multiple handguns, a large amount of cash, a safe containing a white,

      powdery residue that appeared to be cocaine, marijuana, approximately

      thirteen ounces of methamphetamine and approximately twenty-four ounces of

      cocaine.


[3]   Subsequent investigation led to the State charging Johnson, Troutman, and the

      defendants West and Guajardo with various drug-related offenses. With regard

      to West, the State ultimately charged him with two counts of Level 3 felony

      dealing in cocaine, two counts of Level 6 felony dealing in marijuana, and one

      count each of Level 2 felony conspiracy to commit dealing in cocaine, Level 3
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 2 of 18
      felony possession of cocaine, Level 5 felony corrupt business influence, and

      Level 6 felony money laundering. The State charged Guajardo with Level 2

      felony conspiracy to commit dealing in cocaine, Level 5 felony corrupt business

      influence, and Level 6 felony money laundering.


[4]   On October 23, 2018, Troutman entered into a plea agreement with the State

      that provided in part that he would, as a condition of his sentence, “testify fully

      and truthfully in all pretrial hearings, depositions and at trial, if called as a

      witness” in the State’s cases against West, Guajardo, and Johnson. Appellants’

      App. Vol. III, p. 146.


[5]   On November 16, 2018, counsel for West and Guajardo deposed Troutman.

      During his deposition, Troutman stated that he knew that he could obtain

      cocaine from West and that he sold cocaine he had bought from West for a

      profit in order to fund his drug habit. With regard to Johnson, West’s counsel

      questioned Troutman as follows:


              Q.      Okay. And then with Tiras [Johnson], what’s your
                      involvement with Tiras as far as this case goes?

              A.      I mean I’ve known him for a long time. I really . . . I’ve
                      never bought anything off of him.

              Q.      Okay. Earlier today I took Detective Gaskill’s deposition,
                      and we’ll talk more about this in a minute, but before you
                      plead[ed] guilty, or after you plead[ed] guilty, sometime
                      around then, you sat down with Mr. Miller, your attorney,
                      and Keith Gaskill, is that correct?

              A.      Yes.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 3 of 18
              Q.      And gave a statement?

              A.      Yes.

              Q.      Detective Gaskill said that you said during that that you
                      had bought pills [from] Tiras.

              A.      Yes.

              Q.      When did that happen?

              A.      Probably like a year and a half ago.

              Q.      Okay. And beyond buying pills that one time, more than
                      one time?

              A.      You said that buying —

              Q.      Was that . . . Was it pills that you bought from Tiras?

              A.      Yes. I never bought cocaine or anything off of him.

              Q.      Did you buy pills from Tiras more than one time?

              A.      No, just that one time.

              Q.      Okay. So as far as cocaine, as it pertains to cocaine, did
                      you and Tiras have any interaction at all?

              A.      No.


      Appellants’ App. Vol. 4, pp. 66–67 (emphases added).

[6]   During the discovery process, the State never revealed to the defense that

      Troutman was the “known source” who informed police that Johnson was in

      possession of cocaine.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 4 of 18
[7]   At the joint trial of Guajardo and West, Troutman testified as a witness for the

      State after being granted use immunity. Troutman was a hesitant witness but

      testified that he bought cocaine from West in order to resell it to others.


[8]   Also at trial, APD Sergeant Chad Boynton (“Sgt. Boynton”) testified for the

      State. When asked to describe the circumstances that led to the search of

      Johnson’s home, Sgt. Boynton responded:


              I had received a call from Officer Marty Dulworth, K-9 Officer
              and Community Police Officer with our department, um, with
              the Anderson Police Department I should say. He had received
              information from Eric Troutman regarding what had been
              described as a half brick, a term that I know to refer to as a half
              kilo, of cocaine at [Johnson’s] residence, as well as firearms
              and a large amount of cash currency. . . . Upon receiving that
              information I made an attempt to verify some of the information
              that was put forth, um, which included that Tiras Johnson was
              on in-home detention or community correction sanctions at that -
              at that address.


      Tr. Vol. 6, p. 22 (emphasis added). After Sgt. Boynton’s testimony, the trial

      court recessed for the day.

[9]   Before the trial resumed the following morning, West’s counsel requested a

      mistrial, arguing that, prior to Sgt. Boynton’s testimony, he and Guajardo’s

      counsel had been unaware that Troutman was the source who informed the

      police of cocaine at Johnson’s home. The defense claimed that the State had

      not disclosed this information during discovery. West’s counsel argued that,

      had he known that Troutman was the known source, he would not have


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 5 of 18
       attempted to attack Troutman’s credibility, as his theory of the defense was that

       West dealt in marijuana, not cocaine, and that Johnson was the cocaine dealer.

       The prosecuting attorney did not deny that Troutman’s identity as the source

       had not been revealed but claimed that he mistakenly believed he had disclosed

       this information to the defense.


[10]   The trial court then asked counsel for all parties what the remedy should be for

       the State’s failure to disclose Troutman’s identity as the known source. The

       defense argued for a mistrial. The prosecuting attorney argued against a

       mistrial, suggesting that a continuance and further deposition of Troutman

       would be an adequate remedy. The trial court took the matter under advisement

       and, after a recess, granted the defense’s request for a mistrial, stating:


               Mistrials are extreme remedies, they’re not to be used lightly, and
               there is a significant waste of resources when a mistrial is
               declared. And there are harms to the defense that occur, as well,
               when a mistrial is declared. The defendants will remain in
               custody until a retrial can be scheduled when a mistrial [i]s
               granted. In this case, however, the court is persuaded, especially
               with respect to defendant West, that the non-disclosed
               information would have had a significant impact on defense
               strategy that could have had a possible persuasive [e]ffect on the
               jurors in the case. So with great reluctance the court does find at
               this point that mistrial is the only remedy which is adequate to
               address the problem. So I am granting a mistrial in both
               [Defendants’] cases, they’ll be rescheduled for trial.


       Tr. Vol. 6, p. 85.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 6 of 18
[11]   On January 3 and 7, 2019, West and Guajardo, respectively, filed motions to

       dismiss, arguing that their retrial was barred by double jeopardy. The trial court

       held a hearing on the motions on January 11, 2019, at which it heard

       arguments from both parties. At the conclusion of the hearing, the trial court

       denied the motions to dismiss, ruling in relevant part:


               To restate the obvious, there was significant error that was made
               in the discovery process. I think that it’s a simple call to
               characterize that as at least negligent in that there was a duty to
               provide the information. That duty was breached and it resulted
               in har[m] to the defense. So the elements of, um, negligence there
               are simple. The issue that the Court’s asked to decide today
               however is a higher threshold which is that of intent. Because
               we’re not here talking about a discovery violation or remedies for
               a discovery violation, but looking at the possible extreme remedy
               of raising a double jeopardy bar because the State has
               intentionally incited a mistrial. That’s the element of the claim.
               Much of the defense argument was spent kind of going back over
               the circumstances and facts of the discovery violation. And, um,
               the Court notes that no matter how egregious the violation that
               doesn’t get it to a level of double jeopardy bar being raised. It
               must be more than even the intentional wrongful withholding of
               evidence. It has to be the intentional incitement of a mistrial. If
               I look at the facts and interpret them most favorably to the
               defense and assume for the sake of argument here today that the
               State intentionally withheld Brady material for tactical
               advantage, um, what does that mean here? Well, it doesn’t
               answer the question if I assume that. I still have to determine
               whether or not the State intended to incite a mistrial. Not
               whether they did something wrong, not whether they intended
               to hide evidence for tactical advantage, but whether they tried
               to cause a mistrial. I’m not aware of any Indiana case on this



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 7 of 18
           Oregon versus Kennedy[1] issue that, uh, doesn’t require that the
           State have an intent to create a mistrial. You have to look at what
           the overall progress of the case had been up to that point. How
           was the State doing at that point. Would there have been a
           substantial benefit to the State in scrapping that trial and starting
           fresh with a new record. And the Court has to find at this point
           that I don’t find there would’ve been a material benefit to the
           State. The State would’ve been left with more inconsistent
           statements from witnesses who at points struggled for consistency
           as it was. There were witnesses who were reluctant to testify and
           it’s doubtful that they would’ve gotten more willing to testify at a
           retrial. And, um, of pretty strong significance is the fact that the
           door had been opened to Mr. Guajardo’s cocaine history, and it’s
           unlikely that that would happen again at a retrial. And that’s a
           fact which certainly weighed heavily in the State’s favor. The
           fact that the State caused the mistrial isn’t enough to raise double
           jeopardy. . . . And I don’t find here that the remedy of double
           jeopardy bar being raised and the cases being dismissed is
           appropriate. I recognize that there is not Indiana authority quite
           on point with this fact pattern but, to the extent that I can extract
           a rule from the existing Indiana cases, the Court would find the
           standard has not been met here. No matter how egregious the
           violation, I don’t find that there was a demonstrated intent on
           the part of the State to cause a mistrial. At best, their
           (indiscernible) there was an intent to hide evidence for a tactical
           advantage that should’ve been disclosed, and this isn’t the
           remedy for that. So, the Court is going to deny the defendants’
           motions to dismiss.


Tr. Vol. 6, pp. 123–25 (emphases added).




1
    This is a reference to Oregon v. Kennedy, 456 U.S. 667 (1982), discussed infra.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019      Page 8 of 18
[12]   On January 18, 2019, the Defendants requested that the trial court certify its

       order denying their motion to dismiss for interlocutory appeal. The court

       granted this request five days later. On March 22, 2019, this court accepted

       jurisdiction over West’s appeal. We did the same for Guajardo’s appeal one

       week later. We subsequently consolidated both cases, and this appeal ensued.


                                      Discussion and Decision
[13]   The sole issue on appeal is whether the trial court erred in denying the

       Defendants’ motions to dismiss the criminal charges against them. The

       Defendants argue that the prohibitions against double jeopardy in the Fifth

       Amendment to the United States Constitution and Article 1, Section 14 of the

       Indiana Constitution bar their retrial. As we explained in a case addressing a

       similar question:


               The Fifth Amendment to the United States Constitution
               “protects a criminal defendant from repeated prosecutions for the
               same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct.
               2083, 2087 (1982). The Double Jeopardy Clause further grants a
               defendant the right “to have his trial completed by a particular
               tribunal.” Id. at 671–72, 102 S. Ct. at 2087. In general, when a
               defendant elects to terminate the proceedings against him or her,
               double jeopardy does not bar retrial. See id. at 672–73, 102 S.Ct.
               at 2088. However, there is a narrow exception to this rule:
               “The Double Jeopardy Clause does protect a defendant against
               governmental actions intended to provoke mistrial requests
               and thereby to subject defendants to the substantial burdens
               imposed by multiple prosecutions.” Id. at 674, 102 S. Ct. at
               2088 (citation omitted). “[I]f a defendant moves for or consents
               to a mistrial, the defendant forfeits the right to raise a double
               jeopardy claim in subsequent proceedings unless the motion for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 9 of 18
                 mistrial was necessitated by governmental conduct ‘intended
                 to goad the defendant into moving for a mistrial.’” Willoughby
                 [v. State], 660 N.E.2d [570, 576 (Ind. 1996)] (quoting Kennedy,
                 456 U.S. at 676, 102 S. Ct. at 2089).


       Etter v. State, 56 N.E.3d 53, 55–56 (Ind. Ct. App. 2016) (emphases added), trans.

       denied.


[14]   This constitutional test has been codified at Indiana Code section 35-41-4-3,

       which provides:

                 (a) A prosecution is barred if there was a former prosecution of
                 the defendant based on the same facts and for commission of the
                 same offense and if:

                                                        ***

                    (2) the former prosecution was terminated after the jury was
                    impaneled and sworn or, in a trial by the court without a jury,
                    after the first witness was sworn, unless (i) the defendant
                    consented to the termination or waived, by motion to dismiss
                    or otherwise, his right to object to the termination, (ii) it was
                    physically impossible to proceed with the trial in conformity
                    with law, (iii) there was a legal defect in the proceedings that
                    would make any judgment entered upon a verdict reversible
                    as a matter of law, (iv) prejudicial conduct, in or outside the
                    courtroom, made it impossible to proceed with the trial
                    without injustice to either the defendant or the state, (v) the
                    jury was unable to agree on a verdict, or (vi) false statements
                    of a juror on voir dire prevented a fair trial.

                 (b) If the prosecuting authority brought about any of the
                 circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this
                 section, with intent to cause termination of the trial, another
                 prosecution is barred.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 10 of 18
       (Emphasis added).


[15]   When evaluating whether the prosecutor intended to cause the termination of

       the trial, our supreme court has held that “[t]he subjective intent of the

       prosecutor is the dispositive issue.” Butler v. State, 724 N.E.2d 600, 603 (Ind.

       2000) (citing Wilson v. State, 697 N.E.2d 466, 472 (Ind. 1998)). Although a trial

       court’s determination of prosecutorial intent is not conclusive for purposes of

       our review, we do regard its determination as “very persuasive.” Id. at 603–04

       (quoting Wilson, 697 N.E.2d at 473).2 That is, the issue of the prosecutor’s

       intent “is a factual determination that we review under a clearly erroneous

       standard.” Id. at 604. Because the clearly erroneous standard is a review for the

       sufficiency of the evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). Instead,

       we consider only the evidence that supports the judgment and the reasonable

       inferences to be drawn from that evidence. Id.


[16]   The trial court here specifically found that, by failing to disclose Troutman’s

       role as a police source, the prosecuting attorney did not intend to cause a

       mistrial. Considering only the evidence supporting the trial court’s factual

       determination, we must agree. The record reveals that, for whatever reason, the

       State did not disclose to the defense that Troutman was the known source of the

       information that led to the search of Johnson’s home. When the defense


       2
        The Supreme Court in Kennedy treated the state trial court’s determination as dispositive. Kennedy, 456 U.S.
       at 679). However, our supreme court in Wilson held that although the trial court’s determination of intent was
       not conclusive, it was “very persuasive.” 697 N.E.2d at 473; accord Butler, 724 N.E.2d at 604.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019                Page 11 of 18
       deposed Troutman, he claimed to have bought cocaine from West and to have

       purchased pills from Johnson. He denied, however, having purchased cocaine

       from Johnson. When defense counsel asked Troutman, “as it pertains to

       cocaine, did you and [Johnson] have any interaction at all?” Johnson replied,

       “No.” Appellants’ App. Vol. 4, p. 67. The Defendants now claim that this

       answer was false, thereby constituting perjury, and that the prosecution

       committed misconduct by not correcting this response during the deposition or

       at any time prior to trial. We are unable to agree.


[17]   Troutman was asked if he had any “interaction” with Johnson pertaining to

       cocaine. The fact that Troutman told the police that he saw a “brick” of cocaine

       at Johnson’s house does not mean that he had an “interaction” with Johnson

       vis-à-vis the cocaine. Troutman could very well have bought pills from Johnson

       and have seen cocaine at Johnson’s home without ever having purchased

       cocaine or otherwise “interacted” with Johnson regarding the cocaine. Thus,

       the Defendants’ claims that the prosecutor violated various duties and ethical

       obligations to correct perjured testimony fall flat, as Troutman’s deposition

       testimony was not necessarily false.

[18]   Furthermore, the lead prosecuting attorney admitted to the trial court that the

       State had failed to disclose Troutman’s role to the defense but stated that he

       believed he had done so and that his failure to do so was inadvertent. Pointing

       to the complexity of the case and the large amount of information disclosed

       during the discovery process, the prosecuting attorney claimed that this



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 12 of 18
       oversight was unintentional. The trial court was well within its discretion to

       credit the prosecuting attorney’s account.

[19]   But more importantly, as noted by the trial court, there is no indication that the

       prosecution withheld this evidence, or belatedly disclosed it to the defense, with

       the subjective intent of causing a mistrial. To the contrary, the State argued

       strongly against the remedy of a mistrial. And, as noted by the trial court when

       denying the Defendants’ motions to dismiss, the trial was not going poorly for

       the State, and Guajardo had even opened the door to damaging evidence of his

       prior history with cocaine. Thus, there was sufficient evidence supporting the

       trial court’s determination that the prosecution did not intend to cause a

       mistrial.


[20]   The Defendants correctly note that, in prior cases where our courts have

       affirmed a trial court’s denial of a motion to dismiss following a mistrial, the

       cause of the mistrial was due to the behavior of a witness for the prosecution,

       not the behavior of the prosecuting attorneys themselves. See, e.g., Wilson, 697

       N.E.2d at 472–73 (affirming trial court’s denial of defendant’s motion to

       dismiss following a mistrial caused by State’s witness referring to defendant’s

       request for an attorney where the witness’s problematic testimony was not

       directly responsive to the prosecutor’s questions and where prosecutor’s

       questions did not appear to be deliberately calculated to create the need for a

       mistrial); Willoughby, 660 N.E.2d at 575–76 (holding that trial court did not err

       in permitting retrial of defendant after mistrial caused by a police officer

       improperly referring to a polygraph examination where there was no evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 13 of 18
       that the prosecutor intended to cause the mistrial or that the officer knew his

       comments would likely cause a mistrial); Harbert v. State, 51 N.E.3d 267, 274–

       75 (Ind. Ct. App. 2016) (affirming trial court’s denial of defendant’s request to

       dismiss following a mistrial caused by the State’s witness referring to prior

       arrest of co-defendant where there was no evidence that the prosecutor intended

       to cause a mistrial or that the witness knew the comments would cause a

       mistrial), trans. denied.


[21]   The Defendants attempt to distinguish the present case based on who caused

       the need for the mistrial. They argue that the fault should be placed on the State

       because the need for the mistrial was caused by the prosecuting attorney’s

       failure to disclose Troutman’s identity as the known source that led to the

       search of Johnson’s home, not simply a State’s witness. But this is not the

       relevant test. That is, the question is not which party is at fault for causing the

       mistrial, the question is whether the State acted with the subjective intent to

       cause a mistrial. Here, there is no evidence to support such a finding, much less

       evidence that would suggest that the trial court’s contrary finding was clearly

       erroneous.

[22]   We were confronted with a similar situation in Green v. State, 875 N.E.2d 473

       (Ind. Ct. App. 2007), trans. denied. In that case, a police detective discovered

       during the course of the defendant’s trial that she had relevant telephone

       records in her possession. Id. at 476. These records, however, were not properly

       certified, nor were they provided to the defense during discovery. Id. When the

       prosecuting attorney was made aware of this situation, he gave a copy of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 14 of 18
       phone records to the defense counsel and agreed that the records could not be

       admitted at trial. Id. The trial court, unaware of the nature of the phone records,

       permitted a juror to ask the detective a question regarding the phone records. Id.

       When the trial court was later made aware of the circumstances surrounding

       the phone records, it declared a mistrial. Id. Prior to the retrial, the defendant

       moved to dismiss, arguing that his retrial was barred by double jeopardy. Id.

       The trial court denied the motion, and the second trial resulted in the

       defendant’s conviction. Id.


[23]   On appeal, Green contended that the trial court erred by denying his motion to

       dismiss. We rejected this contention, noting that although the trial court found

       that the mistrial was “the responsibility of the State,” this was not inconsistent

       with the finding that the prosecution did not intend to cause a mistrial. Id. at

       477. We also noted that the prosecutor did not intentionally withhold the phone

       records. Id. Further, at the hearing on the motion to dismiss, the prosecuting

       attorney stated that the first trial had been going well for the State and that he

       did not want a mistrial. Id. Given these facts, we held that the trial court’s

       decision to deny the motion to dismiss was not clearly erroneous. Id.


[24]   Although the facts of the present case are not wholly analogous to those in

       Green, in both cases, the State’s inadvertent mistake caused the mistrial. And in

       both cases, the trial court found that the prosecutors did not intend to cause a

       mistrial. Indeed, here, as in Green, the prosecutor believed the State’s case to be

       going well and did not desire a mistrial. As in Green, we are in no position to



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 15 of 18
       second-guess the trial court’s decision on the question of the prosecutor’s

       subjective intent.

[25]   Both the Defendants and the State spend much of their briefs on the issue of

       whether, under the Indiana Constitution, we should adopt a stricter standard

       for when double jeopardy bars a retrial following a mistrial that was the result

       of the actions of the prosecution. Noting that our supreme court has adopted a

       stricter test for determining whether two or more convictions constitute double

       jeopardy under the Indiana Constitution, see Richardson v. State, 717 N.E.2d 32

       (Ind. 1999), the Defendants argue that we should adopt a correspondingly

       stricter test for determining whether retrial is permissible following a mistrial

       caused by the State.

[26]   In support of their argument, the Defendants note that several commenters

       have criticized the more lenient federal standard announced by the United

       States Supreme Court in Oregon v. Kennedy, 456 U.S. 667 (1982). See Appellants’

       Br. at 23.3 The Defendants also note that several other state courts have given

       defendants more protections following mistrials caused by the prosecution

       based upon the double jeopardy clauses found in their state constitutions.4



       3
         In their Appellants’ Brief, the Defendants quote a substantial portion of what they claim to be the opinion
       of this court in Harbert. As noted by the State, however, the language quoted by the Defendants is not from
       this court’s opinion. Instead, it appears this quote was taken from a brief filed in the Washington Supreme
       Court in a case involving a similar issue. The Defendants do not deny this claim in their reply brief. We
       caution counsel for the Defendants to be more careful when attributing quotations to this court.
       4
        See Thomas v. Eighth Judicial Dist. Court in & for Cty. of Clark, 402 P.3d 619, 626 (Nev. 2017); People v. Batts, 68
       P.3d 357, 380–81 (Cal. 2003); State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999); State v. Breit, 930 P.2d 792,
       803 (N.M. 1996); Commonwealth. v. Smith, 615 A.2d 321, 325 (Pa. 1992); State v. White, 354 S.E.2d 324, 329
       (N.C. Ct. App. 1987); Pool v. Superior Court In & For Pima Cty., 677 P.2d 261, 271–72 (Ariz. 1984); State v.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019                      Page 16 of 18
[27]   This court has been asked to adopt a stricter test before, and we have declined

       to do so. See Harbert, 51 N.E.3d at 275 (declining to adopt the stricter standard

       adopted by the Oregon Supreme Court in Kennedy); Etter, 56 N.E.3d at 56 n.1

       (declining to adopt a stricter standard based on the Indiana Constitution and

       noting that our courts have not undertaken a separate analysis under our state

       constitution when addressing the issue of double jeopardy following a retrial

       caused by the State’s conduct); Calvert v. State, 14 N.E.3d 818, 823 (Ind. Ct.

       App. 2014) (declining to adopt Oregon’s stricter test in determining whether

       prosecutorial misconduct barred retrial following reversal of defendant’s

       conviction on appeal); see also Willoughby, 660 at 575–76; Green, 875 N.E.2d at

       476–77 (both addressing defendant’s claims that the double jeopardy clause of

       the Indiana Constitution barred retrial following a mistrial using the Oregon v.

       Kennedy standard). We once again decline to depart from our current test.5


                                                   Conclusion
[28]   The trial court did not clearly err in determining that the prosecuting attorney

       did not subjectively intend to cause a mistrial or intend to goad the Defendants

       into requesting a mistrial. The Defendants’ retrial therefore does not constitute




       Kennedy, 666 P.2d 1316, 1326 (Ore. 1983) (all interpreting their respective state constitutional prohibitions
       against double jeopardy to provide more protection for defendants following a mistrial caused by the
       prosecution). The Texas Court of Criminal Appeals also adopted a stricter rule in Bauder v. State, 921 S.W.2d
       696, 699 (Tex. Crim. App. 1996), but this decision was later overruled in Ex parte Lewis, 219 S.W.3d 335, 371
       (Tex. Crim. App. 2007), in which the court abandoned the stricter rule and adopted the federal rule
       announced in Oregon v. Kennedy.
       5
         If such an important change in Indiana constitutional law is to be made, we believe it should be made by
       the Indiana Supreme Court.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019                Page 17 of 18
       double jeopardy. Accordingly, we affirm the order of the trial court denying the

       Defendants’ motions to dismiss.

[29]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019   Page 18 of 18
