[Cite as State v. Kitchen, 2018-Ohio-5244.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : Case No. 18CA3640
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY MICHAEL KITCHEN, :
Defendant-Appellant. : RELEASED: 12/07/2018 APPEARANCES:
Michael L. Benson and Mark D. Tolles, II, Benson & Sesser, L.L.C., Chillicothe, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. Harsha, J. {¶1} Following a declaration of a mistrial based on prosecutorial misconduct
and scheduling of a new jury trial, the Ross County Court of Common Pleas denied
Kitchen’s motions to dismiss the charge against him based on double-jeopardy and
constitutional speedy-trial claims.
{¶2} Because the common pleas court’s interlocutory entry denying his motion
to dismiss based on the constitutional right to a speedy trial does not constitute a final,
appealable order, we lack jurisdiction to address the merits of that assignment of error.
{¶3} We do have jurisdiction to address Kitchen’s assertion that the trial court
erred by denying his motion to dismiss based on double jeopardy. However, we reject it
because in general, there is no double-jeopardy bar to a retrial following a trial court’s
granting of a criminal defendant’s motion for a mistrial. And he has not established the
narrow exception to the general rule, which requires the request for a mistrial be Ross App. No. 18CA3640 2
precipitated by prosecutorial misconduct that was intentionally calculated to cause or
invite a mistrial.
{¶4} Here, the state committed prosecutorial misconduct by violating the trial
court’s order barring it from introducing any evidence of what Kitchen said in recorded
footage that was not disclosed to him before trial. However, there is no evidence that
the state intended to cause a mistrial by asking an officer one question regarding a
statement Kitchen made on the undisclosed footage. Specifically, (1) there was no
sequence of overreaching before the single question; (2) the state resisted Kitchen’s
request for a mistrial and appeared genuinely surprised that it had violated the court’s
order; and (3) the trial court concluded that although the state had committed
prosecutorial misconduct by eliciting testimony that violated its order, it was not the
state’s intent to cause the mistrial. We overrule Kitchen’s first assignment of error and
affirm the trial court’s judgment denying the double-jeopardy motion to dismiss.
I. FACTS
{¶5} The Ross County Grand Jury returned a secret indictment charging
Michael Kitchen with one count of sexual battery in violation of R.C. 2907.03, a third-
degree felony. The Ross County Sheriff’s Office arrested Kitchen and following his
arraignment the next day, he was released from custody upon posting a recognizance
bond. In its bill of particulars the state alleged that Kitchen engaged in vaginal
intercourse with Sara Howell, who was not his spouse, when he knew that she was
unaware that the act was being committed.
{¶6} In its opening statement at the jury trial, the state asserted Sara Howell
and her boyfriend let Kitchen, her high school friend, sleep over on a couch in their Ross App. No. 18CA3640 3
apartment in Chillicothe after going to eat. After her boyfriend left the next morning for
work, Howell awoke in her bedroom to discover that Kitchen was engaged in sex with
her without her consent. Kitchen finished the sexual act, left the room, and went back to
sleep on the couch in another room. After exchanging text messages with her father
and a friend, Howell contacted the police, made a report, and was administered a rape
kit. The testing determined that Kitchen’s DNA was found in semen in both Howell’s
vaginal and anal cavities.
{¶7} In Kitchen’s counsel’s opening statement, he contended that Kitchen and
Howell engaged in consensual sex, which had been initiated by Howell. He further
conceded that when Kitchen was awakened by three law enforcement officers
responding to Howell’s report of sexual battery, he lied that he did not have sex with
Howell because he was terrified and did not know what Howell had told them.
{¶8} The state’s first witness, Chillicothe Police Officer Shane Simmons,
testified that he and Officer Chip Campbell were dispatched to Howell’s apartment to
respond to a reported sexual assault. They talked to Howell and then entered the
apartment, where they observed Kitchen asleep on a couch. Then they contacted
Detective Twila Goble, who arrived and with Officer Campbell, they began questioning
Kitchen after advising him of his Miranda rights. Officer Simmons’s body camera was
activated during his interaction with both Howell and Kitchen. On cross-examination
Kitchen’s attorney played the body camera footage that had been provided to him by
the state in discovery. However, Officer Simmons testified that the footage shown was
not the end of his body camera footage. He indicated he had viewed other footage from
his body camera concerning the reported sexual battery. Ross App. No. 18CA3640 4
{¶9} Outside the presence of the jury Officer Simmons explained that there was
approximately 21 minutes of additional footage of Officer Campbell interrogating Kitchen
that the police had failed to disclose to the prosecutor because the old body cameras
would download footage to the server in multiple sections when it became too lengthy.
Kitchen moved for a mistrial based on the state’s failure to disclose this evidence in
discovery. The trial court overruled Kitchen’s motion, ordered the state to provide
Kitchen with a copy of the undisclosed body camera footage, and continued the case
until the next morning to permit Kitchen and his counsel to review the footage.
{¶10} The next morning after receiving the previously undisclosed recording of
Officer Simmons’s body camera footage, Kitchen’s attorney again asked for a mistrial,
generally asserting that “there would have been different statements and procedure and
strategy in this case had we been provided it.” He claimed that even if this additional
undisclosed footage was excluded, “it still doesn’t alleviate the issue that the jury knows
a video exists and is not going to be play[ed] and I’ve made statements, or
representations, that the video would be played * * *.” Significantly, the parties and the
trial court agreed that the state’s failure to provide this footage to the defense was
unintentional.
{¶11} The state noted Officer Simmons’s and Detective Gobles’s statements in a
Master Incident Report, which the state had provided to Kitchen and his counsel,
referenced several of Kitchen’s statements from the undisclosed body camera footage:
(1) Kitchen told the officers that he did not remember having sex with Sara; (2) Kitchen
told Officer Campbell he had a dream last night about having sex with his girlfriend; and Ross App. No. 18CA3640 5
(3) Kitchen stated that his girlfriend had told him that he had groped her in his sleep
before.
{¶12} The trial court denied Kitchen’s second motion for mistrial because: (1)
despite his concession that he initially told police he did not have sex with Howell,
Kitchen’s defense of consensual sex was consistent with what both the undisclosed and
disclosed portion of Officer Simmons’s body camera footage revealed; (2) portions of
the undisclosed body camera footage were disclosed to Kitchen in the police reports the
state gave to the defense in discovery; and (3) although there were discrepancies and
inconsistencies created by the state’s Crim.R. 16 violation, they were not substantially
material to Kitchen’s defense.
{¶13} Nevertheless, the trial court prohibited the state “from utilizing any portion
of the undiscovered video in any way, shape or form,” but permitted the defense to use
it in any way it felt necessary. The court finally noted that it had not had an opportunity
to review the undisclosed footage, but that it would reserve further ruling until the court
had the chance to compare it with the reports that were provided in discovery.
{¶14} Upon return from recess the trial court instructed the jury that “[b]ased
upon the State’s failure, not the defense, * * * to provide the remainder of the video, this
Court has ruled that the undisclosed portion will not be admitted into evidence.
Therefore, you are not to draw any inference that the Defendant has failed to produce
the remainder of the video * * *.” The parties then concluded their examination of
Officer Simmons.
{¶15} On the state’s direct examination of its next witness, Officer Campbell, it
questioned him about statements Kitchen had made addressing why he stayed at Ross App. No. 18CA3640 6
Howell’s apartment that night. Apparently, Kitchen told the officers that he and Howell
had been friends for a while and they had not spoken for some time. Kitchen’s counsel
objected to this testimony on the basis that it had not been disclosed in discovery, but
the state countered that Kitchen’s statement was contained on the disclosed body
camera footage. The trial court overruled the objection, but again warned the state that
“if this officer testified about anything said only on the undisclosed portion, that is a
violation of my order and if he violates my order or any other officer violates my order, I
will grant a mistrial.”
{¶16} Subsequently, the state asked Officer Campbell “when you were speaking
with the Defendant in this case, did you happen to ask him about any dreams he might
have had?” and the officer responded that he had. Kitchen objected and moved for a
mistrial.
{¶17} The assistant prosecutor opposed the motion and stated that it was her
understanding that she was permitted to ask about statements that were on the
undisclosed part of the body camera footage if they were in fact contained in the police
reports provided in discovery. Kitchen’s statement about the dream was on both the
undisclosed footage and the disclosed police reports. The assistant prosecutor stated
that it was not her intent to violate the court’s order and moved to strike her question
and Officer Campbell’s answer, and release the witness. The trial court noted that it did
not understand how the assistant prosecutor had misinterpreted its order; it granted the
mistrial. In its entry declaring the mistrial the court noted that it initially overruled
Kitchen’s motion for a mistrial based on the state’s violation of Crim.R. 16, but granted
Kitchen’s renewed motion when the state violated the court’s curative order. Ross App. No. 18CA3640 7
{¶18} Subsequently, the trial court set the retrial date. Over four months after
the mistrial and two months after rescheduling of the trial Kitchen filed motions to
dismiss based on double-jeopardy and his constitutional speedy-trial rights. Kitchen
claimed that the state intentionally goaded him to request a mistrial because of its
prosecutorial misconduct and that the over five-month delay between the mistrial and
the scheduled retrial was constitutionally unreasonable. The state responded.
{¶19} After the state responded the trial court denied Kitchen’s motions to
dismiss in two separate entries issued on the same date. Addressing double jeopardy
the court concluded that “[a]lthough this Court cannot understand how his ruling was
misinterpreted by the Assistant Prosecuting Attorney, this Court cannot find that the
offending question was designed to goad the defendant into moving for a mistrial. It
certainly was prosecutorial misconduct, but this Court cannot find that i[t] was the
intention of the Assistant Prosecuting Attorney to cause a mistrial.” On the
constitutional speedy-trial claim the court concluded “the five month delay in
rescheduling the Defendant’s trial does not constitute presumptive prejudice” and
“[e]ven in considering the four factor balancing test this Court cannot determine that the
five month delay is constitutionally unreasonable.”
II. ASSIGNMENTS OF ERROR
{¶20} Kitchen assigns the following errors for our review:
1. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT- APPELLANT MICHAEL KITCHEN’S MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS.
2. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT- APPELLANT MICHAEL KITCHEN’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS. Ross App. No. 18CA3640 8
III. LAW AND ANALYSIS
A. Jurisdiction
{¶21} Kitchen contests the trial court’s entries denying his motions to dismiss on
double-jeopardy and constitutional speedy-trial claims. Before addressing the merits of
the assignments of error, we must determine whether this appeal is properly before us.
Although the parties do not suggest that we lack jurisdiction, “litigants cannot vest a
court with subject-matter jurisdiction by agreement”; subject-matter jurisdiction is
properly raised by an appellate court sua sponte. See Cheap Escape Co., Inc. v.
Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 22; State ex
rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 13.
{¶22} Courts of appeals have “such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final orders of the courts of record
inferior to the court of appeals within the district.” Ohio Constitution, Article IV, Section
3(B)(2). “R.C. 2505.03(A) limits the appellate jurisdiction of courts of appeals to the
review of final orders, judgments, or decrees.” See State ex rel. Bd. of State Teachers
Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d
1289, ¶ 44.
{¶23} Clearly “the denial of a motion to dismiss on double-jeopardy grounds is a
final, appealable order.” State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6
N.E.3d 23, ¶ 6. Therefore, we have jurisdiction to address the merits of Kitchen’s first
assignment of error.
{¶24} However, “an order denying a motion to dismiss on speedy trial grounds is
not a final appealable order * * *.” See State v. Payne, 4th Dist. Lawrence No. 16CA3, Ross App. No. 18CA3640 9
2016-Ohio-1411, and cases cited there. Consequently, we lack jurisdiction to address
the merits of Kitchen’s second assignment of error, which we dismiss.
B. Double Jeopardy
{¶25} Kitchen asserts that the trial court erred in overruling his motion to
dismiss, which was based on double-jeopardy grounds. We apply a de novo standard
of review to address the denial of that motion. State v. Anderson, 148 Ohio St.3d 74,
2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.
{¶26} 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 of life or limb.” This protection applies to Ohio citizens through the
Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the
Ohio Constitution, and prohibits the state from subjecting a defendant to multiple trials
for the same offense. See Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24
(1978) as cited in Katz & Giannelli, Baldwin’s Oh. Prac. Crim. L., Section 72:2 (3d
Ed.2018).
{¶27} Generally, “[w]hen a trial court grants a criminal defendant’s request for a
mistrial, the Double Jeopardy Clause does not bar a retrial.” State v. Loza, 71 Ohio
St.3d 61, 70, 641 N.E.2d 1082 (1994), citing Oregon v. Kennedy, 456 U.S. 667, 673,
102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Katz & Giannelli, Baldwin’s Oh. Prac. Crim. L.,
Section 74:5 (3d Ed.2018) (“The United States Supreme Court has never been willing to
accept a rigid rule that would automatically bar retrial under any circumstance following
a mistrial, holding, instead, that in most instances a mistrial granted with the consent or
on the motion of a defendant does not bar retrial under the Double Jeopardy Clause”). Ross App. No. 18CA3640 10
{¶28} Nevertheless, the United States and Ohio Supreme Courts have
recognized a narrow exception to the general rule exists when prosecutorial misconduct
giving rise to a successful motion for a mistrial was intended to provoke or goad the
defendant into moving for a mistrial. Kennedy at 676, 679; Loza at 186. This
determination requires the trial court to examine the totality of the circumstances to
make a factual finding of the prosecutor’s intent; it is entitled to great deference on
appeal notwithstanding our general de novo review. See, e.g., State v. Webster, 1st
Dist. Hamilton No. C-130700, 2014-Ohio-5647,¶ 10, citing Kennedy at 675; see also
Phillips v. Court of Common Pleas, Hamilton Cty., Ohio, 668 F.3d 804, 812 (6th
Cir.2012) (“Although we review the state proceedings de novo, we nevertheless find it
appropriate to give deference to the trial court's factual finding regarding the intent of the
prosecutor because it was in the best position to make the finding”).
{¶29} “A reviewing court may consider the following factors in determining
whether the required intent to provoke a mistrial existed: (1) whether there was a
sequence of overreaching prior to the single prejudicial incident; (2) whether the
prosecutor resisted or was surprised by the defendant’s motion for a mistrial; and (3) the
findings of the trial and appellate courts concerning the intent of the prosecutor.” State
v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 27, citing State v. Girts, 121
Ohio App.3d 539, 553, 700 N.E.2d 395 (8th Dist. 1997); see also Kennedy at 680
(Powell, J., concurring); State v. Greene, 7th Dist. Mahoning No. 02 CA 122, 2005-
Ohio-2420, ¶ 24.
{¶30} In reviewing these factors here, we find no sequence of overreaching by
the prosecuting attorney before the single question concerning whether Officer Ross App. No. 18CA3640 11
Campbell had asked Kitchen about any dreams he might have had. The trial court had
previously determined that the state had failed to provide discovery of the 21 additional
minutes of Officer Simmons’s body camera footage, but the parties agreed, and the
court found, that the discovery violation was unintentional and caused by the recording
system used at the time. See Betts at ¶ 26, citing Girts at 553 (“Mere negligence will
not suffice to show intent to provoke a mistrial”). The next instance of misconduct that
Kitchen cites is when the assistant prosecutor asked Officer Campbell what statements
Kitchen had made about why he stayed at Howell’s apartment the night before the
incident. But the trial court overruled his objection to this question, and the record does
not contain any evidence that would contradict that ruling—the state represented that
this evidence was contained in the body camera footage that had been properly
disclosed to Kitchen in discovery. Therefore, there was no sequence of overreaching
by the prosecutor before the question that prompted the mistrial.
{¶31} Moreover, even assuming that Kitchen could have established a sequence
of overreaching before the conduct that resulted in the mistrial, the Supreme Court of
the United States held in Kennedy, 456 U.S. 667, at 675-676, 102 S.Ct. 2083, 72
L.Ed.2d 416, that “[p]rosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant’s motion * * * does not
bar retrial absent intent on the part of the prosecutor to subvert the protections afforded
by the Double Jeopardy Clause.” See also State v. Hodges, 2018-Ohio-447, 105
N.E.3d 543, ¶ 18 (7th Dist.).
{¶32} Looking at the second factor, the record establishes that the state
consistently and vehemently resisted Kitchen’s motions for mistrial. And it apparently Ross App. No. 18CA3640 12
was genuinely surprised by the motion and the trial court’s declaration of a mistrial. The
assistant prosecutor professed confusion over whether she was permitted to elicit
testimony concerning dreams when the substance of those same statements was
previously disclosed in discovery through police reports. Although this did not prevent
the trial court’s declaration of mistrial, the state’s confusion and its resistance does
indicate that the state was surprised by it.
{¶33} On the final factor the trial court found that although the prosecutor’s
violation of its order warranted a mistrial, the solitary question to Officer Campbell
concerning Kitchen’s dreams was not intended by the prosecutor to force a mistrial as a
strategic trial tactic. This line of questioning concerned peripheral evidence that did not
substantially detract from Kitchen’s stated defense of consensual sex and his admission
that he had initially lied to the officers that he did not have sex with Howell. Because
the trial court’s conclusion on this issue is supported by the record, we accord it the
deference it is entitled to. Webster, 2014-Ohio-5647, at ¶ 10, citing Kennedy, 456 U.S.
667, 675, 102 S.Ct. 2083, 72 L.Ed.2d 416.
{¶34} Based on our de novo review we agree with the trial court that this case
does not fit within “the narrow exception adopted by the United States Supreme Court in
Kennedy * * * reserved for the limited set of circumstances where the nature of the
state’s misconduct clearly and unquestionably demonstrates its intent to cause or invite
a mistrial.” See State v. Kelly, 2015-Ohio-1948, 34 N.E.3d 513, ¶ 19 (1st Dist.).1 We
overrule Kitchen’s first assignment of error.
1 Although the parties assert that no Ohio case has ever found that this strict standard to prove a double-
jeopardy violation based upon prosecutorial misconduct was satisfied, our own research uncovered at least one case. In State v. Owens, 127 Ohio App.3d 65, 711 N.E.2d 767 (6th Dist.), an appellate court held that the state goaded a defendant into seeking a mistrial when the prosecutor vigorously fought for Ross App. No. 18CA3640 13
V. CONCLUSION
{¶35} For lack of jurisdiction, we dismiss Kitchen’s second assignment of error,
which contests the denial of his motion to dismiss on constitutional speedy-trial grounds.
Having overruled Kitchen’s first assignment of error, we affirm the judgment of the trial
court denying his motion to dismiss on double-jeopardy grounds.
APPEAL DISMISSED IN PART AND
JUDGMENT AFFIRMED.
more than three months and won the right to retain the confidentiality of an informant’s identity, but the prosecutor then revealed the name of the informant during the state’s opening statement. Needless to say, the facts in that case are distinguishable from the facts here. Ross App. No. 18CA3640 14
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMIISSED IN PART AND THE JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.