State v. Tolliver

Opinion

[Cite as State v. Tolliver, 2026-Ohio-1652.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 115496 v. :

JOSHUA TOLLIVER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 7, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-695929-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.

Jeffrey S. Richardson, for appellant.

MARY J. BOYLE, J.:

Defendant-appellant Joshua Tolliver (“Tolliver”) appeals the decision

of the Cuyahoga County Court of Common Pleas denying his motion to dismiss his

case based on double jeopardy grounds. After careful review of the record, we

affirm. I. Facts and Procedural History

In October 2024, Tolliver and codefendant, Jeshawn Darby

(“Darby”), were indicted in connection with the murder of Jaylin Perry (“Perry”),

which occurred on April 2, 2023, in Cleveland, Ohio. Tolliver and Darby were

charged with one count of aggravated murder, two counts of murder, two counts of

felonious assault, one count of receiving stolen property (motor vehicle), and one

count of improperly handling firearms in a motor vehicle. The murder and felonious

assault counts contained one-, three-, and five-year firearm specifications. The

receiving stolen property count included one- and three-year firearm specifications.

Tolliver was also charged with an additional count of improperly handling firearms

in a motor vehicle, two counts of having weapons while under disability, one count

of involuntary manslaughter, two counts of tampering with evidence, and one count

of failure to comply with an order or signal of police officer. The additional counts

included the date of the murder, as well as two additional dates. One date covered

the disposal of evidence of the murder, and one date involved a police chase where

a handgun was thrown from the vehicle. Tolliver was also charged with notice-of-

prior conviction and repeat-violent-offender specifications.

Tolliver and Darby pled not guilty and discovery ensued. Numerous

pretrials were conducted, and a trial date of March 31, 2025, was set. On March 5,

2025, the parties learned that the gun recovered from the police chase of Tolliver

did not match the shell casings recovered at the murder scene as originally suspected. On March 13, 2025, the trial date of March 31, was rescheduled to May

27, 2025, at the joint request of the defense and the State.

In early April 2025, the record reflects that the State and the defense

were working on a technology issue involving video footage. In early May 2025,

Tolliver filed a motion to sever the counts pertaining to the police chase. The motion

was unopposed and granted by the trial court.

The May 27 trial date was continued to June 11, at the State’s

request, because the prosecutor was engaged in trial on a different case. At this

time, the State indicated to the trial court that discovery was complete, except for

cell phone records pertaining to the severed counts. Additionally, a second trial

date of June 30, 2025, was also scheduled if the June 11 date was not feasible.

Ultimately, trial commenced on June 30, 2025, because the State was in trial on

another case on June 11.

During opening statement, the State indicated that Tolliver and

Darby were observed on video getting in and out of the black Dodge Challenger

alleged to be involved in the drive-by shooting of Perry. The vehicle was parked

outside Tolliver’s apartment complex just prior to the shooting and Tolliver’s

iPhone was connected to the vehicle’s Bluetooth just prior to the time of the

shooting.

Tolliver argued, during opening statement, that there was no

evidence connecting him to the murder. He argued that the State could not put

Tolliver in the vehicle at the time of the murder and did not recover the murder weapon. Tolliver implied that the police targeted Tolliver because of a previous

incident that was alleged to have happened between Tolliver and Perry. 1

Before the start of the third day of trial, Darby pled guilty to the

charges of receiving stolen property (motor vehicle) and tampering with evidence

because the video footage proved he could not have been in the vehicle at the time

of the shooting. Up until that day, the State experienced technical difficulties with

the video footage and the accuracy of the times associated with the video.

According to the record, the plea agreement did not involve testimony against

Tolliver.

After Darby’s plea, Tolliver moved for a mistrial. He argued that by

Darby pleading guilty midtrial, the jury would assume that the evidence against

Darby was strong and by extension it was strong against Tolliver. The State

opposed the motion for mistrial, arguing that when a codefendant pleads guilty

midtrial, the jury is not informed of the plea and instructed not to consider why

the codefendant is no longer at the trial table. The trial court denied Tolliver’s

motion, and trial resumed.

That same day, during the lunch break, the State received an email

from the detective, which included a DNA report authored July 1, 2025, by the

Cuyahoga County Regional Forensic Science Laboratory. The DNA report revealed

1 We note that in a defense filing it is alleged that a 2020 police report indicates

that Perry may have shot Tolliver, possibly in self-defense, during an attempted robbery. Perry’s girlfriend testified during trial that Perry had a long-standing feud with someone named Joshua, but she did not know who Joshua was or what he looked like. that Darby’s DNA was in the front-seat area of the vehicle, but Tolliver’s DNA was

not found in the vehicle. The report was immediately forwarded to Tolliver’s

counsel.

The next day, July 3, 2025, Tolliver again moved for a mistrial based

on Darby’s plea, as well as the late disclosure of the DNA report, asserting that this

information would have changed Tolliver’s trial strategy. The State again opposed

the motion for mistrial. The trial court granted Tolliver’s motion for mistrial and

dismissed the jury. A new trial date was set.

On July 29, 2025, Tolliver filed a motion to dismiss the charges

against him arguing that the State manipulated the defense into requesting a

mistrial. Tolliver insisted that the State offered a plea agreement to Darby to

discredit Tolliver’s defense and to “so deeply prejudice Mr. Tolliver that he ha[d]

no choice but to move for a mistrial.” (Motion to Dismiss, July 29, 2025.) He

contended that the State “re-opened” discovery after telling the trial court that

discovery was complete, including collecting DNA from Tolliver shortly after the

first trial date. He also alleged that the State purposely waited to disclose the DNA

results to cause prejudice to Tolliver. He argued that although the State objected

to the motion for mistrial, the State “would have been just as happy to continue

trial under the extreme prejudice to Mr. Tolliver created by its own prosecutorial

misconduct.” (Motion to Dismiss, July 29, 2025.)

The State filed a brief in opposition to Tolliver’s motion to dismiss

on August 8, 2025. The State explained that the parties experienced significant technical difficulties regarding the correct sequencing of the video footage and it

was resolved during trial, which led to the plea offer to Darby. Based on the timing

in the video footage, there was evidence that Darby could not have been in the

vehicle at the time of the shooting. The State also explained that Tolliver’s DNA

was collected for multiple reasons, including the counts that were severed for trial,

and other investigations. The State explained that it has no control over when DNA

test results are completed and the State forwarded the DNA results to Tolliver’s

attorney within minutes of receiving it.

The trial court denied Tolliver’s motion to dismiss, finding:

The State of Ohio’s conduct was not intentionally calculated to cause or invite a mistrial. Although the State of Ohio represented to the trial court that discovery was complete, they did inform all parties that additional discovery was received during the course of trial. The State of Ohio indicated that the discovery was immediately turned over to the defense. (Although the court did find that this discovery could have changed the defendant’s trial strategy, how they questioned witnesses, and how they proceeded, and as such, the motion for mistrial was granted.)

(Journal Entry, Aug. 25, 2025.) It is from this ruling that Tolliver now appeals,

raising one assignment of error for our review:

The trial court erred by denying [Tolliver’s] Motion to Dismiss the charges based on the State’s violation of the Double Jeopardy Clause by engaging in repeated instances of prosecutorial misconduct committed for the purpose of leaving [Tolliver] with no alternative but to move for mistrial. II. Law and Analysis

A. Standard of Review

We note that “[t]he denial of a motion to dismiss on double jeopardy

grounds is a final appealable order subject to immediate appellate review.”

Cleveland v. Jones, 2017-Ohio-7320, ¶ 11 (8th Dist.), citing State v. Anderson, 2014-

Ohio-542, ¶ 26. “Appellate courts apply a de novo standard of review when

reviewing the denial of a motion to dismiss an indictment on the grounds of double

jeopardy.” State v. Anderson, 2016-Ohio-5791, ¶ 20.

B. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution states that “[n]o person shall . . . be subject for the same offence

to be twice put in jeopardy of life or limb[.]” The Fifth Amendment was made

applicable to the states through the Fourteenth Amendment. Oregon v. Kennedy,

456 U.S. 667, 671 (1982). Additionally, Article I, Section 10 of the Ohio Constitution,

which states “[n]o person shall be twice put in jeopardy for the same offense[,]”

protects a criminal defendant from multiple prosecutions for the same offense.

State v. Kareski, 2013-Ohio-4008, ¶ 14. The policy underlying this protection is to

ensure that

“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.” U.S. v. Jorn, 400 U.S. 470, 479 (1971), quoting Green v. U.S., 355 U.S. 184, 187-188

(1957).

C. Retrial is Not Prohibited

Generally, there are no double jeopardy considerations when a

mistrial is declared. N. Olmsted v. Himes, 2004-Ohio-4241, ¶ 36 (8th Dist.), citing

State v. Gaines, 2003-Ohio-6855 (8th Dist.) 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. Id., citing United States v. Tateo, 377

U.S. 463, 467 (1964); State v. Loza, 71 Ohio St.3d 61, 70 (1994). However, a narrow

exception to this rule applies when a defendant’s request for a mistrial was

precipitated by prosecutorial misconduct intended to elicit the defendant to seek a

mistrial. State v. Truhlar, 2016-Ohio-5338, ¶ 34 (8th Dist.), citing Himes, at ¶ 36-

37.

As this court explained in Himes:

[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.

Himes at ¶ 37-38. When determining whether the requisite prosecutorial intent was

present, this court may consider the following factors: (1) whether a sequence of

overreaching existed 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 court concerning the intent of the prosecutor. Id. at ¶ 39,

citing Kennedy, 456 U.S. at 680 (Powell, J., concurring).

1. No Sequence of Overreach

In the instant case, Tolliver argues that the State attempted to

continue the trial date numerous times apparently suggesting that the continuance

requests were an overreach by the State. The record, however, is clear that the first

trial date was continued at both the State’s and the defense’s request and the

subsequent requests were because the prosecutor was already engaged in trial.

Because a person cannot be in two courtrooms at once, we find that requesting a

continuance is not an overreach.

Next, Tolliver asserts that the late collection of DNA from Tolliver, as

well as the late disclosure of the DNA test results, which was exculpatory for Tolliver

and inculpatory for Darby, “served no benign purpose.” (Tolliver brief, p. 11.) The

DNA test results indicated that Darby’s DNA was found in the driver side of the

vehicle allegedly used in the murder, but Tolliver’s DNA was not found in the vehicle.

Tolliver appears to argue that the delay in turning over the DNA test results was

calculated to cause a mistrial. Tolliver asserts that the facts in his case are similar to

the facts in State v. Mattison, 2008-Ohio-4090 (8th Dist.). We find the facts in Mattison distinguishable from the facts in this

case. In Mattison, the defendant was charged with felonious assault for hitting the

victim in the head with a brick after the victim exited a store. On cross-examination

the victim testified that the defendant was outside the store “24 hours a day, seven

days a week.” Id. at ¶ 3. On redirect, the State questioned what the victim meant by

his statement, “24 hours a day, seven days a week.” The victim replied that the

defendant was a drug dealer. The defendant moved for a mistrial, which was

granted by the trial court finding that State provoked a mistrial by asking the

question because the State’s case was “going south.” Id. at ¶ 4. The State appealed.

This court affirmed the dismissal with prejudice concluding that

based on the record it was clear that the victim’s credibility was at issue, the evidence

was inadmissible, and “the state knew that the question would lead the jury to

conclude that Mattison was a drug dealer, regardless of whether the victim actually

answered it.” Id. at ¶ 11. This court found that there was “no benign purpose” for

the State’s question and “the state engaged in trial by innuendo, thus goading

Mattison’s motion for mistrial.” Id.

In the instant case, the State did not knowingly illicit testimony in

front of the jury that would goad Tolliver into moving for a mistrial. Rather, the

State disclosed newly acquired evidence to defense counsel as is required by Brady

v. Maryland, 373 U.S. 83 (1963), and Crim.R. 16(A). Indeed, Crim.R. 16(A) states

that the purpose of the rule “is to provide all parties in a criminal case with the

information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-

being of witnesses, victims, and society at large. All duties and remedies are subject

to a standard of due diligence, apply to the defense and the prosecution equally, and

are intended to be reciprocal. Once discovery is initiated by demand of the

defendant, all parties have a continuing duty to supplement their disclosures.”

(Emphasis added.)

Here, the record reflects that DNA was collected for multiple reasons,

including the severed counts related to Tolliver where a handgun was recovered, as

well as other investigations related to Tolliver. Although Tolliver accuses the State

of waiting 24 hours to disclose the DNA report, the record reflects that it was turned

over within minutes of the State receiving the results in accordance with

Crim.R. 16(A). We also note that the detective, who likely was sitting at the trial

table with the prosecutor, received the DNA report first by email and then forwarded

the results to the prosecutor presumably when the detective viewed the email. The

record also indicates that the DNA report was authored July 1, 2025, and in the

hands of the State and Tolliver during lunch break on July 2, 2025. It is unclear

when the detective received the email or viewed the email, but we can hardly say

that the State or the detective waited to disclose the DNA results for some nefarious

reason or to goad Tolliver into moving for a mistrial.

Next, Tolliver insists that the State was attempting to “completely

discredit Mr. Tolliver’s defense by offering [Darby] a sweetheart deal.” (Tolliver

brief, p. 12.) Tolliver fails to cite any caselaw to support his contention. In State v. Davis, 2019-Ohio-4692 (10th Dist.), the Tenth District

found that the trial court did not abuse its discretion when it denied defendant’s

request for a mistrial after the codefendants pled guilty midtrial. The Davis Court

found that a curative instruction was sufficient to correct any potential prejudice to

the defendant arising out of the codefendants accepting pleas midtrial. Id. at ¶ 34.

See also State v. Hollins, 2020-Ohio-4290 (8th Dist.) (citing Davis, and finding that

the trial court did not abuse its discretion when it denied defendant’s motion for

mistrial after a codefendant pled guilty midtrial).

Contrary to Tolliver’s assertion, the record reflects that the State was

able to determine that Darby was not in the vehicle during the murder and offered

Darby a plea agreement in accordance with the evidence. That plea did not include

testimony against Tolliver. Moreover, it is unclear how Darby’s pleading guilty

undermined Tolliver’s defense when his defense was that it was not him and there

was no evidence connecting him to the murder, which was only bolstered by the then

empty chair previously occupied by Darby.

2. The State Objected to the Motion for Mistrial

Tolliver argues that although the State objected to a mistrial, it was

the State’s goal to goad him into requesting a mistrial. Again, we disagree with

Tolliver’s assessment of the State’s motives.

In the instant case, when Tolliver requested a mistrial, the prosecutor

specifically stated: I confess I have not recently looked up the law on [motions for mistrial] but I certainly have had it happen before where one or more defendants will engage in a plea agreement mid-trial after a jury has been seated. I’ve never had a mistrial granted in that circumstance. I can’t think of a case where that became an assignment of error on appeal, but I am happy to look for a case.

(Tr. 426.) Further, when Tolliver requested a mistrial the following day, the State

was armed with caselaw and thoroughly argued against it.

In Himes, the defendant requested a mistrial after the prosecutor

asked a question to an officer that elicited a response that could be construed by the

jury that the defendant had a prior conviction for driving under the influence

(“DUI”). Himes, 2004-Ohio-4241. While at sidebar, the trial court revealed that the

defendant did in fact have a prior conviction for DUI, which was unknown to the

prosecutor as well as defense counsel. Id. at ¶ 13. The defendant then withdrew his

motion for mistrial and requested a curative instruction. The prosecutor, however,

insisted on a mistrial. The trial court granted the mistrial. Thereafter, the defendant

filed a motion to dismiss on double jeopardy grounds, which was denied by the trial

court. Id. at ¶ 14-19. This court found that the State did not goad the defendant into

requesting a mistrial, there was no sequence of overreach, and the prosecutor

initially opposed the request for mistrial. Id. at ¶ 40-41. Nevertheless, this court

reversed the trial court’s denial of defendant’s motion to dismiss on double jeopardy

grounds finding that the trial court abused its discretion when it granted a mistrial

because no manifest necessity existed to warrant a mistrial. Id. at ¶ 45-46. Rather than a mistrial, a curative instruction, which was suggested by the defense, would

have sufficed. Id.

Again, in the instant case, the State did not elicit improper testimony

or goad Tolliver into requesting a mistrial. Further, the State did not request a

mistrial and argued against granting a mistrial. Rather, it was Tolliver who insisted

on the mistrial. Therefore, we find that there is no evidence that the State

intentionally caused or invited a mistrial.

3. The State did Not Intend to Cause a Mistrial

Finally, we independently review the trial court’s findings that the

State did not intend to cause a mistrial. Tolliver argues that this is not a situation

where the State asked the wrong question or played the wrong video in trial, but

rather, “[t]his was a calculated exercise of prosecutorial discretion designed to so

prejudice Mr. Tolliver [so that] he had no choice but to request a mistrial.”

(Tolliver’s brief, p. 13.)

Again, we find no merit to Tolliver’s contention. Codefendants plead

guilty, sometimes midtrial. Surely, Tolliver is not suggesting that Darby not be

offered a plea bargain when evidence comes to light that he is not involved.

Undoubtedly, Tolliver would expect a plea offer or dismissal if evidence came to light

that he was not involved.

Furthermore, we find no merit to Tolliver’s argument that the State

somehow delayed the DNA testing or the results. Although there is a misconception

that DNA results can be achieved during a commercial break, this is simply not true. Furthermore, every governmental agency is constrained by the same things, rules,

funding, equipment, and staff. In addition, it is burdened by an overabundance of

requests. No doubt the State would prefer to have all the evidence available prior to

trial, but it is not always feasible and a defendant’s right to speedy trial weighs in the

balance with every single delay.

After reviewing the factors set forth in Himes, we find that there was

no sequence of overreaching by the State that existed prior to the single prejudicial

incident; the prosecutor resisted Tolliver’s motions for mistrial; and we agree with

the findings of the trial court concerning the intent of the prosecutor. Therefore,

after a thorough review of the record, we find, as did the trial court, that “[t]he State

of Ohio’s conduct was not intentionally calculated to cause or invite a mistrial.”

(Journal Entry, Aug. 25, 2025.)

Accordingly, Tolliver’s sole assignment of error is overruled.

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. The appellant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________ MARY J. BOYLE, JUDGE

EMANUELLA D. GROVES, P.J., and SEAN C. GALLAGHER, J., CONCUR