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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2012-560


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                             OSAHENRUMWEN OJO

                           Argued: October 10, 2013
                       Opinion Issued: February 21, 2014

      Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.

      Thomas Barnard, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.

       HICKS, J. The defendant, Osahenrumwen Ojo, appeals his conviction of
theft by deception, see RSA 637:4 (2007), following a jury trial in Superior
Court (Brown, J.). The conviction followed a previous jury trial, also in
Superior Court (Brown, J.), for a related charge, which ended in a mistrial
based upon a hung jury. On appeal, he argues that the Double Jeopardy
Clause of the New Hampshire Constitution barred the second trial. See N.H.
CONST. pt. I, art. 16. We affirm.
       The record supports the following facts. On September 17, 2009, a
Hillsborough County grand jury returned an indictment charging the defendant
with a single count of theft by deception. The indictment alleged that the
defendant “obtained or exercised control over the property of another by
deception and with a purpose to deprive him thereof” by depositing in his
Citizens Bank checking account two checks on April 8, 2009, and, the
following day, cashing his own check for $6,000 drawn on the account. One of
the checks, issued by the LEAR Corporation, was for $3,975 (the LEAR check).
The second check, issued by Allstate Insurance, was for $1,989.96 (the Allstate
check).

      The defendant stood trial in February 2012. After the State rested, he
moved to dismiss the indictment based upon insufficient evidence regarding
the LEAR check, which the trial court denied. At a subsequent bench
conference involving proposed jury instructions, the State conceded that it had
the burden of proving fraud with regard to both checks. Thus, the trial court
instructed the jury that “it’s not enough that the State has proven beyond a
reasonable doubt that the Defendant’s use of one or the other of the checks
was unlawful.” Rather, the court instructed, “[t]o find the Defendant guilty,
you must unanimously decide that he acted to defraud the bank by his use of
both the LEAR check and the Allstate check.” The jury deadlocked, and the
court declared a mistrial over the defendant’s objection.

       On April 20, 2012, the State obtained two substitute indictments, each
alleging theft by deception for a single invalid check (the LEAR check and the
Allstate check, respectively). The State then nolle prossed the original
indictment. On June 4, 2012, the Trial Court (Brown, J.) denied the
defendant’s motion to dismiss both charges, in which he argued that, because
the evidence at the first trial was insufficient, retrial would violate his double
jeopardy rights. Nonetheless, at a pretrial motions hearing that same day, the
Trial Court (Abramson, J.) dismissed the indictment based upon the LEAR
check after the State informed the court that, as to that check, it could not
produce any evidence beyond that which it introduced during the first trial. In
June 2012, the defendant stood trial on the indictment based upon the Allstate
check, resulting in his conviction of theft by deception. This appeal followed.

       On appeal, the defendant argues that Part I, Article 16 of the New
Hampshire Constitution “should be construed to bar retrial where (a) the
defendant moved to dismiss the charge based on insufficiency of the evidence,
(b) the evidence was legally insufficient, and (c) the court declared a mistrial
over the defendant’s objection.” See N.H. CONST. pt. I, art. 16. The issue of
double jeopardy presents a question of constitutional law, which we review de
novo. State v. Fischer, 165 N.H. ___, ___ (decided November 26, 2013).
Because the defendant argues only under the State Constitution, we base our




                                        2
decision upon it alone, citing federal cases for guidance only. Petition of State
of N.H. (State v. Johanson), 156 N.H. 148, 156 (2007).

       At the outset, we note that the defendant does not argue that the Double
Jeopardy Clause contained in the Federal Constitution, see U.S. CONST.
amend. V, bars retrial in this case. The United States Supreme Court, in
Richardson v. United States, 468 U.S. 317 (1984), held that the original
jeopardy to which a defendant is subjected does not terminate when a jury
deadlocks resulting in a mistrial, and thus a double jeopardy claim that retrial
is barred under these circumstances must fail, “[r]egardless of the sufficiency
of the evidence at [the defendant’s] first trial.” Richardson, 468 U.S. at 326 &
n.6. The defendant argues that we should “decline to adopt Richardson under
the State Constitution,” and that, instead, we should recognize that a
defendant has a valid double jeopardy claim if he has moved to dismiss a
charge because of actual insufficiency of the evidence, and the trial court has
declared a mistrial over the defendant’s objection.

       The Double Jeopardy Clause of the New Hampshire Constitution
prohibits the State from placing a defendant in jeopardy more than once for the
same offense. State v. Howell, 158 N.H. 717, 719 (2009). A defendant is
placed in jeopardy when a jury is empaneled and sworn, State v. Paquin, 140
N.H. 525, 528 (1995), or, in the case of a bench trial, when the judge begins to
hear evidence, State v. Solomon, 157 N.H. 47, 50 (2008). After jeopardy
attaches for a particular offense, it “terminates” — thereby prohibiting retrial
for the same offense — upon a judgment of acquittal or conviction, cf.
Johanson, 156 N.H. at 156-57, or upon an “unnecessarily . . . declared”
mistrial preventing either judgment, Solomon, 157 N.H. at 50 (quotation
omitted). See People v. Carbajal, 298 P.3d 835, 846 (Cal. 2013) (discussing
federal law). A determination, either at trial or on appeal, that the prosecution
has presented insufficient evidence on a given charge necessarily amounts to
an acquittal — and, thus, termination of jeopardy — on that charge. See
Richardson, 468 U.S. at 325 & n.5; Burks v. United States, 437 U.S. 1, 10-11
(1978); see also State v. Chaisson, 126 N.H. 323, 325 (1985) (noting that this
rule is not applicable to de novo trials).

       A defendant normally has the right to complete a trial before a
“particular tribunal”: either the same chosen jury, in a jury trial; or the same
judge, in a bench trial. Solomon, 157 N.H. at 50.

      Such a right exists because the State with all its resources and
      power should not be allowed to make repeated attempts to convict
      an individual for an alleged offense, thereby subjecting him to
      embarrassment, expense and ordeal and compelling him to live in
      a continuing state of anxiety and insecurity, as well as enhancing
      the possibility that even though innocent he may be found guilty.



                                        3
Id. (quotation omitted).

       The right to complete a trial before a particular tribunal is not absolute,
however, and “must in some instances be subordinated to the public’s interest
in fair trials designed to end in just judgments.” Howell, 158 N.H. at 720
(quotation omitted). One such instance occurs when a trial court, “with the
greatest caution, under urgent circumstances, and for very plain and obvious
causes,” declares a mistrial over the objection of the defendant. Solomon, 157
N.H. at 50-51 (quotation omitted). The Double Jeopardy Clause does not bar
retrial after a mistrial when the defendant “consents to the mistrial, or, if he
objects, upon a finding of the trial court that there is manifest necessity for the
act, or that the ends of public justice would otherwise be defeated.” Howell,
158 N.H. at 720 (quotation omitted). Under these circumstances, jeopardy
does not terminate but instead continues. See State v. Liakos, 142 N.H. 726,
730 (1998) (holding that “in this case . . . the failure of a jury to reach a verdict
did not terminate jeopardy, but rather results in continuing jeopardy” on
deadlocked charge (citation omitted)); see also Johanson, 156 N.H. at 157
(“[T]he conclusion that jeopardy has attached begins, rather than ends, the
inquiry. Thus, we must take a further step and ask whether the trial court
terminated jeopardy in a way that prevents reprosecution.” (quotations and
citation omitted)).

       Although manifest necessity “is not susceptible to precise categorization,”
Howell, 158 N.H. at 721, we have noted that “a hung or deadlocked jury has
been understood to present a classic occasion of [manifest] necessity,
understood as a high degree of need to allow the public one full and fair
opportunity to try the defendant.” State v. Hartford, 132 N.H. 580, 584 (1989)
(quotation and citations omitted) (holding, under the Double Jeopardy Clause
of the Federal Constitution, that manifest necessity existed to declare a mistrial
based upon a genuinely deadlocked jury). When there has been a genuine
deadlock, “the jury deadlock itself create[s] a manifest necessity.” State v.
Kornbrekke, 156 N.H. 821, 830 (2008) (holding, under the Double Jeopardy
Clauses of the State and Federal Constitutions, that “the record supports a
declaration of a mistrial based upon jury deadlock, and, thus, by manifest
necessity, which prevents original jeopardy from terminating on that charge”
(quotation and citation omitted)); see also Hartford, 132 N.H. at 585 (holding
that the trial court had before it evidence of genuine deadlock and “thus
satisfied both the procedural and substantive predicates of a reasonable
exercise of discretion to find manifest necessity to discharge”).

       The defendant, however, asks us to hold that manifest necessity “does
not exist where the deadlock is based on legally insufficient evidence.” Noting
that “[a]ll possible alternatives to a mistrial must be considered, employed and
found wanting before declaration of a mistrial over the defendant’s objection is



                                          4
justified,” State v. Pugliese, 120 N.H. 728, 730 (1980); see also Howell, 158
N.H. at 720 (“A trial court must . . . take all circumstances into account, and
should allow counsel to comment as well as consider alternatives before
declaring a mistrial.”), the defendant argues that dismissing the case under
these circumstances was not only a “possible alternative” to mistrial but also a
“legal requirement.” Alternatively, the defendant asks us to hold that a
declaration of mistrial over the defendant’s objection, after a jury has
deadlocked in a case in which the State put on insufficient evidence,
“constitutes the equivalent of an acquittal.” Under either proposed rule, the
defendant argues that jeopardy terminated upon the declaration of a mistrial in
this case, therefore barring retrial.

      The defendant makes a number of arguments — based upon policy
considerations, holdings in two other jurisdictions, a partial concurrence filed
in Richardson, and our own opinions — as to why we should adopt either
proposed double jeopardy rule. Having considered these arguments, we are
not persuaded to adopt either rule.

       Absent a determination of insufficiency, a declaration of a mistrial based
upon a genuinely deadlocked jury, which we have held constitutes manifest
necessity, see Kornbrekke, 156 N.H. at 830; see also Hartford, 132 N.H. at 585,
“is not an event that terminates the original jeopardy,” Richardson, 468 U.S. at
326; see also Liakos, 142 N.H. at 730; State v. Nickles, 144 N.H. 673, 677-78
(2000). This rule addresses the “high degree of need to allow the public one full
and fair opportunity to try the defendant.” Hartford, 132 N.H. at 584
(quotation and citation omitted); see Richardson, 468 U.S. at 324 (“Without
exception, the courts have held that the trial judge may discharge a genuinely
deadlocked jury and require the defendant to submit to a second trial. This
rule accords recognition to society’s interest in giving the prosecution one
complete opportunity to convict those who have violated its laws.” (emphasis
added) (quotation and brackets omitted)).

       Accordingly, we conclude that jeopardy did not terminate on the charge
based upon the Allstate check prior to the defendant’s retrial on that charge.
Although the trial court dismissed the indictment based upon the LEAR check,
it did not determine that the State had produced insufficient evidence with
regard to the Allstate check. Thus, jeopardy did not terminate prior to the
second trial. Cf. Burks, 437 U.S. at 10-11; Chaisson, 126 N.H. at 325.

       Finally, the defendant does not dispute on appeal that his jury was
genuinely deadlocked. Because the trial court declared a mistrial based upon a
genuinely deadlocked jury, and thus there was manifest necessity to discharge
the jury, see Kornbrekke, 156 N.H. at 830; see also Hartford, 132 N.H. at 585,
jeopardy did not terminate upon the court’s declaration, “[r]egardless of the
sufficiency of the evidence at [the defendant’s] first trial,” Richardson, 468 U.S.



                                        5
at 326. Therefore, we hold that double jeopardy did not bar retrial. See id.;
Kornbrekke, 156 N.H. at 830.

                                                 Affirmed.

      DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.




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