This is аn appeal by plaintiff, the city of Columbus, from a judgment of the Franklin County Municipal Court, dismissing a criminal action brought against defendant, Donald E. Wood.
On November 22, 1995, defendant was charged with cоmmitting domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor. The matter came for trial before a jury on April 2,1996.
By entry filed April 4, 1996, the trial court dismissed the case. The trial court’s entry of dismissal provided:
“This cause was commenced on 4-2-96 and ended on 4-3-96, a mistrial being declared due to misconduct of primary prosecution witness.
a # ;(: ;j<
“The court finds:
“That the prosecution witness, despite repeated warnings, irrevocably tainted these proceedings and destroyed the defendant’s right to a fair jury trial by making nonresponsive highly prejudicial and inflammatory remarks, the accumulated effect of which could no longer be cured by instructions to the jury. Such conduct occurred during the witness’ direct examination by the prosecution.
“Further, then, the defendant hаving been placed in jeopardy, the Court ordered the case dismissed since it could not proceed on its merits any further.”
On appeal, the city sets forth the following assignment of еrror for review:
“The trial court erred as a matter of law when it dismissed the domestic violence charge as being barred by double jeopardy after the defense successfully sought a mistrial.”
Under its single assignment of error, the city contends that the trial court’s dismissal of the case on double jeopardy grounds was erroneous as a matter of law.
In
State v. Loza
(1994),
“The Double Jeopardy Clausе of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, protects a criminal defendant from repeated prosecutions for the same offеnse. Oregon v. Kennedy (1982),456 U.S. 667 , 671,102 S.Ct. 2083 , 2087,72 L.Ed.2d 416 , 422. When a trial court grants a criminal defendant’s request for a mistrial, the Double Jeopardy Clause does not bar a retrial. Id. at 673,102 S.Ct. at 2088 ,72 L.Ed.2d at 423 . A narrow exception lies where the request for a mistriаl is precipitated by prosecutorial misconduct that was intentionally calculated to cause or invite a mistrial. Id. at 678-679,102 S.Ct. at 2091 ,72 L.Ed.2d at 427 . See, also, State v. Doherty (1984),20 Ohio App.3d 275 , 20 OBR 338,485 N.E.2d 783 . Only where the prosecutorial conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. Oregon v. Kennedy, supra,456 U.S. at 676 ,102 S.Ct. at 2089 ,72 L.Ed.2d at 425 .”
In the prеsent case, defense counsel made a motion for mistrial during the prosecution’s direct examination of the city’s first witness, Cynthia G. Wood, the wife of defendant. Specifically, during direct еxamination, the prosecutor questioned the witness about the events of November 21, 1995, which gave rise to the
“Q. [THE PROSECUTOR]: How did that argument progress?
“A. We were both arguing initially, and Donald — I had said I had a headache, and I didn’t really want to talk about things. He had hit me in the head numerous times that morning after another — during another incident before this had all happened.
“[DEFENSE COUNSEL]: Objection, Your Honor. Move to strike.
“THE COURT: Objection noted.
“Ma’am, would you please answer the question directly. You were asked to answer what had happened during the course of this argument.
“The jurors are instructed to disregard the other remarks made by the witness about the alleged incident from the morning at this particular time.”
Following this admonition by the trial court, Wood resumed her аccount of the argument. Wood testified that the defendant told Ryan, the couple’s son, to get him some Tylenol. Wood stated that when Ryan brought his father the wrong bottle, the defendant started yelling at Ryan. Wood told the defendant to stop yelling at their son, prompting the defendant to throw the medicine bottle at her. The testimony then proceeded as follows:
“Q. What happened after that?
“A. After that, Ryan went back over to his table to do his homework and to finish up his homework, and the argument continued between us along the same lines, as far as unemployment. And he felt I was nagging at him. And it continued, but really didn’t go anywhere until Donald jumped out of his chair, stood up. His fists were clenched. His eyes were bulging, and he said, ‘Go to bed. Go to bed. Go to bed.’ He screamed it. He screamed it оut loud, just in general and—
“Q. Was it time for the children to go to bed, or was—
“A. It was getting near bedtime, but this was what he normally did when he was about ready to hurt me.
“[DEFENSE COUNSEL]: Objection, Your Honor. Move to strike.
“THE COURT: Motion to strike is sustained.
“Ma’am, answer the question, please.
“Again, the jurors are instructed to disregard the portion of the response that was not resрonsive to the question.”
Following this second admonition by the trial court, Wood continued with her account of the incident. Wood testified that Ryan jumped up from the table and stood, looking perplexed; he “didn’t know what he was supposed to do, because he didn’t know why he was being screamed at.” The prosecutor then asked Wood the following:
“Q. What was Ryan doing? He was doing his homework?
“A. He was doing his homework at the table. I could see him from where I was at in the great room. And I looked over at him when he was * * * doing this. He stood up and kind of looked around, kind of not knowing — he said, What?’
“[DEFENSE COUNSEL]: Objection as to what anybody else said.
“THE COURT: Objection noted, overruled.
“A. And he kind of lookеd around, and Don just — I don’t know if he didn’t move fast enough or what, but Don barreled right after him -with his hands out. And Ryan went into the dining area, which is adjacent to our kitchen, ran around the table * * *. And Ryan ran around the tаble. Don caught him on the other side, grabbed Ryan with his right hand, grabbed Ryan right here, like here, and kind of threw him, like this. (Indicating.)
“Ryan stumbled, caught himself, didn’t actually fall. I stood up at that time, and I started yelling at Don that hе wasn’t going to hurt my son like this. He has hurt me for 11 years.
“[DEFENSE COUNSEL]: Objection, Your Honor.
“THE COURT: Counsel approach the bench, please.
U ^ # *
“[DEFENSE COUNSEL]: May I make a motion?
“THE COURT: Go ahead.
“[DEFENSE COUNSEL]: I’m moving for a mistrial, Your Honor.
“THE COURT: Sustained.
“Your witness has been instructed three times to answer the question.
“Ma’am, your own testimony has tainted this particular trial.
“The case is dismissed.”
As previously noted, when a trial court grants a criminal defendant’s request for a mistrial, the Double Jeopardy Clause does not bar a retrial except
The rеcord in this case provides no evidence to support a contention that the prosecutor had a motive for seeking to provoke defense counsel into moving for a mistrial; the evidence “does not reflect the state’s desire for a continuance, the unavailability of a particular witness, or the state’s lack of preparation fоr trial.”
State v. Williams
(Feb. 23, 1995), Franklin App. No. 94APA04-542, unreported,
Defendant argues that, even if the questions posed by the prosecutor were not intended to elicit prejudicial comments, it was incumbent upon the prosecutor to ask for a recess in order to get the witness under control. We would agree that the better practice would have been for the prosecutor to request a brief recess; however, while the prosecutor may have exercised poor judgment in failing to make such a request, the prosecutor’s conduct amounted to no more than negligence аs opposed to intentional conduct. A retrial is not barred on double jeopardy grounds “where negligence on the part of the government, rather than intentional misconduct, requires the court to grant defendant’s motion for a mistrial.”
State v. Van Sickle
(Sept. 18, 1986), Franklin App. No. 86AP-98, unreported,
Accordingly, we agree with the city’s contention that the trial court erred, as a matter of law, in dismissing the case on the grounds that double jeopardy
Based upon the foregoing, the city’s single assignment of error is sustained, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed.
Notes
. We note that there is no contention by either the city or defendant that the trial court abused its discretion in declaring a mistrial.