State v. Nixon, 2017 Ohio 8

On May 19, 2015 Aaron Freeman was shot in the left arm after a fight at a Mansfield, Ohio residence; Gerald S. Nixon, Jr. was later arrested and indicted on multiple counts (most later dismissed), leaving only a weapons-under-disability charge for trial.
Freeman gave several recorded statements (May 19, May 20, June 2, Sept. 30, 2015) and testified at the July 8, 2015 preliminary hearing identifying Nixon as the shooter; he also told police Nixon offered him money not to testify.
At trial (Jan. 2016), Freeman unexpectedly testified that he could not remember the incident or prior statements; the prosecutor sought to impeach with Freeman’s prior recorded statements and preliminary hearing testimony.
The trial court, after questioning Freeman outside the jury’s presence, ruled the State could not present Freeman’s prior statements or prior testimony to the jury.
The prosecutor said it could not proceed without those statements; the trial court declared a mistrial to allow the State to appeal the evidentiary ruling.
On appeal the State argued the court erred in excluding Freeman’s prior inconsistent statements; the appellate court dismissed the appeal because the mistrial order was not a final, appealable order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by excluding the victim’s prior recorded statements and prior preliminary-hearing testimony for impeachment after the witness claimed lack of memory at trial	The State argued it should be allowed to introduce Freeman’s prior recorded statements and preliminary-hearing testimony to impeach his trial memory lapse and preserve its case	Nixon argued (through the ruling) that the trial court properly exercised discretion in excluding the prior statements/questioning outside the jury because the court found continued inquiry unproductive and the witness’ claimed lapse credible	The appellate court did not reach the merits of admissibility because it found it lacked jurisdiction to review the ruling as presented (see below)
Whether the trial court’s declaration of mistrial produced a final, appealable order enabling interlocutory review of the evidentiary ruling	The State treated the mistrial as enabling appellate review of the mid-trial evidentiary exclusion under Malinovsky and Crim.R. 12(K)	Implicit defense position: mistrial is not a final adjudication in favor of either party and thus not appealable	The court held the mistrial order was not a final, appealable order; therefore it dismissed the appeal and did not decide the evidentiary question

State v. Malinovsky, 60 Ohio St.3d 20 (Ohio 1991) (recognized limited mid-trial appeal rights for the State following certain adverse evidentiary rulings)
State v. Widner, 68 Ohio St.2d 188 (Ohio 1981) (mistrial is permissible where there is manifest necessity or public justice requires it)
State v. Anderson, 138 Ohio St.3d 264 (Ohio 2014) (appellate courts may review only final orders; without a final order, they lack jurisdiction)
Kauffman v. Schauer, 121 Ohio St. 478 (Ohio 1929) (historical recognition that a grant of mistrial is not a final appealable order)
State v. Bistricky, 66 Ohio App.3d 395 (Ohio App.) (appellate court jurisdiction requires a final order)