[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
State v. Truhlar
Combined Opinion