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On September 17, 2018, appellant, the State of Ohio, filed a pre-trial Evid.R. 404(B)

notice of evidence and request for a special limiting instruction. The state provided notice that its

witness, Adam Muntz, stated that appellee spoke to him at the accident scene and indicated that she

had one or more prior OVIs. The state thus indicated that the evidence in question consists of

appellee’s “criminal history, revealing two previous convictions for OVI dating November 1, 2013

and December 10, 2008 (convictions for prior acts).” The state further indicated it anticipated that

appellee may “seek to dispute the credibility of eyewitness Adam Muntz on the veracity of his

testimony that she stated to him that he should not report the accident because it would be her third

OVI. This evidence of prior convictions would tend to show proof of the matters covered by

Crim.R. 404(B)(motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

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mistake or accident) in corroboration with Mr. Muntz’s testimony.”

{¶ 4} Prior to the start of the February 5, 2019 jury trial, the parties discussed with the court

issues concerning the appellee’s prior OVI convictions. During that conference, the prosecutor

stated that he would not discuss the prior OVI evidence during opening statement. Apparently, the

parties and the court planned to address the issue when Muntz testified. However, after the court

empaneled the jury and during opening statement, the prosecutor mentioned Muntz’s anticipated

testimony and explicitly stated “Mr. Muntz tells the Trooper that the woman tells him not to call the

police because she cannot afford another DUI.” Appellee thereupon requested a mistrial. The

prosecutor responded “I did not agree not to mention the prior convictions from her statements,

which are statements against interest, which may be proved by extrinsic evidence when it comes up.”

{¶ 5} After a lengthy discussion, the trial court listened to the parties’ recorded statements

about any mention of appellee’s prior OVI convictions during opening statement. That in-chambers

discussion included the following dialogue:

DEFENSE COUNSEL: Yes, I have a question. First of all, I need to ask the

Court, since the Court is not making a ruling about this

prior coming in, at this point, then that should not be

talked about in opening?

COURT: I don’t know what his witness is going to say. If his

witness says that, I mean, it is.

DEFENSE COUNSEL: Right. But I don’t think it would be appropriate for the

state in its opening to tell the jury that she has a prior

conviction.

PROSECUTOR: To allay [Defense Counsel’s] concerns, that was never

part of the opening and will not be.

After consideration, the trial court granted appellee’s motion for a mistrial. The court’s entry

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provides:

the parties agreed that the prior OVI convictions of the Defendant would not be

communicated to the jury during opening statements or otherwise until testimony

from witnesses for the State was received by the Court and jury. Contrary to the

agreement of counsel, the Assistant Law Director informed the jury during his

opening statement that there would be evidence that the Defendant had prior

convictions of OVI. At the conclusion of the attorney’s opening statement, counsel

for the Defendant made a motion for a mistrial.

The trial court concluded that, based upon “argument of counsel, the review of the record and it

appearing proper to do so,” the court granted appellee’s motion for mistrial and subsequently

dismissed the complaints with prejudice. This appeal followed.

I.

{¶ 6} In its first assignment of error, appellant asserts that the trial court abused its discretion

by granting appellee’s motion for a mistrial.

{¶ 7} Appellant argues that the prior OVI conviction evidence would: (1) support the

witness’s claim that he spoke with appellee at the scene; (2) establish appellee’s identity as the

vehicle’s driver; and (3) show a motive for leaving the scene of the accident. Appellant claims that

the witness, Muntz, heard the appellee’s spontaneous admission about being in a similar condition in

the past and this statement is strong evidence of the appellee’s belief about her impairment.

Appellant then contends that the “Defendant’s statement was not necessarily an admission to having

been charged with or convicted of anything: the charges/conviction would have become relevant

only in the event of a dispute about whether this statement was made in the first place.” Apparently,

prosecutor appears to distinguish between extrinsic evidence of conviction that it anticipated it may

use if cross-examination of the witness went a certain way, and the use of the statement that appellee

allegedly made to that witness. Appellant also contends that the trial court’s non-journalized oral

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decision did not give the prosecutor notice that a decision had been made, nor clarified the

particulars of that ruling.

{¶ 8} Appellee, however, asserts that the prior convictions are not an element of the offense

in the case at bar and the jury “would tend I believe to convict her of this case, based on her prior

OVI rather than the facts as they would come out.” Appellee further argues that the obvious

prejudicial nature of the prior conviction evidence, and risk of the improper use of that evidence,

reasonably supports the trial court’s decision to prohibit any mention of appellee’s prior convictions,

at least until the witness who allegedly heard the accused’s statement testifies about the exact nature

of the alleged conversation.

{¶ 9} In general, the grant or denial of a motion for a mistrial rests in a trial court’s sound

discretion and should not be disturbed on appeal absent an abuse of that discretion. State v. Treesh,

90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). To establish an abuse of discretion by failing to

grant a mistrial, a defendant must demonstrate material prejudice. See State v. Adams, 144 Ohio

St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. “Mistrials need be declared only when the ends

of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118,

127, 580 N.E.2d 1 (1991).

{¶ 10} In support of its argument that the trial court’s grant of the appellee’s motion for

mistrial constitutes an abuse of discretion the state cites Columbus v. Miller, 10th Dist. Franklin No.

89AP-111, 89AP-112, and 89AP-113, 1989 WL 104381. In Miller, the defendant allegedly stated

that he would not take a breathalyzer test because he did not have a license to lose. During opening

statement, after the prosecutor referred to Miller’s statement, Miller objected and requested a

mistrial. The court concluded that “it is not clear on this record that the prosecutor’s misquotation

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of defendant’s alleged statement was a deliberate attempt to sway the jury with prejudicial

information.” Id. at *2. The court also noted that the statement had previously been ruled

admissible. By contrast, in the case at bar the trial court reserved ruling as to whether this

information would be admissible. Moreover, on the morning of trial defense counsel inquired about

the court’s ruling and appellant replied, “To allay concerns, that was never part of the opening and

will not be.” Nevertheless, during opening statement appellant mentioned the prospective witness’s

expected testimony concerning appellee’s alleged statement about her prior convictions. Thus,

unlike Miller, in the instant case appellant’s opening statement included information that should not

have been conveyed to the jury.

{¶ 11} Appellant also cites Harwin v. Jaguar Cleveland Motors, Inc., 8th Dist. Cuyahoga No.

40578, 1980 WL 354603, a civil case irrelevant to our analysis of whether the trial court abused its

discretion in determining that appellant’s opening statement prejudiced a criminal defendant. While

it is true that, generally, counsel enjoys wide latitude during opening statement, that latitude does not

include the mention of prejudicial and inadmissible evidence. As the trial court stated here, “[t]he

parties agreed that the prior OVI convictions of the Defendant would not be communicated to the

jury during opening statements or otherwise until testimony from witnesses for the State was

received by the Court and jury. Contrary to the agreement of counsel, [appellant] informed the jury

during his opening statement that there would be evidence that the Defendant had prior convictions

of OVI.”

{¶ 12} Appellant also cites State v. Leasure, 2015-Ohio-5327, 43 N.E.3d 477 (4th Dist.), a

case that involved R.C. 4511.19(A)(2) and a prior OVI conviction as an element of the offense. We

concluded in Leasure that the trial court’s decision to admit evidence of the prior conviction did not

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violate the defendant’s due process rights because in that case the prior offense was an element of the

charged offense. In the case sub judice, however, a prior conviction is not an element of the charged

offense.

{¶ 13} Also of note is State v. Williamson, 3d Dist. Crawford No. 3-04-06, 2004-Ohio-3545,

in which the defendant, charged with OVI, stated to the arresting officer that he had “two prior

DUIs.” Williamson requested the state not to be permitted to comment upon the prior convictions

and, after a hearing, the trial court agreed that these statements were overly prejudicial and prohibited

the state from comment on the prior OVIs in its case in chief. The court of appeals agreed, and

concluded that prior OVI conviction evidence in a OVI case is overly prejudicial and the state’s case

in chief must rest on the facts of the present case, not prior convictions. Id. at ¶ 5.

{¶ 14} In the case sub judice, our review reveals that the prosecutor explicitly and

unequivocally informed the court and opposing counsel that he would not mention during opening

statement appellee’s alleged statement concerning her prior convictions. However, during opening

statement the prosecutor explicitly mentioned the appellee’s statement concerning her prior OVI

convictions. Based on this fact, and the prejudicial nature of the evidence, we cannot conclude that

the trial court exhibited an unreasonable, arbitrary or unconscionable attitude in this matter.

Although the prosecutor argues that he did not intend to prejudice the appellee, that statement is

nevertheless improper and prejudicially affected the accused’s substantial rights. Drummond,

supra, at ¶ 226. Again, we recognize that the prosecutor maintains that he did not intend to run

afoul of his earlier statement, and the trial court’s wishes, and in support of this claim he advances a

nuanced argument concerning extrinsic evidence. Nevertheless, after our review of the record we

conclude that the trial court’s decision to grant appellee’s motion for mistrial did not constitute an

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abuse of discretion.

{¶ 15} Accordingly, based upon the foregoing reasons, we overrule appellant’s first

assignment of error.

II.

{¶ 16} Because appellant’s second and third assignments of error raise related issues, we

consider them together. Appellant asserts that the trial court erred when it (1) dismissed the case

with prejudice to refiling; and (2) did not provide the state the opportunity to again address the court

and to provide it rationale for the mention of appellee’s prior OVI convictions during its opening

statement.

{¶ 17} Appellant urges us to follow State v. Vogt, 4th Dist. Washington No. 17CA17,

2018-Ohio-4457, in which this court considered whether a mistrial, declared due to the prosecutorial

misconduct of withholding evidence until the date of trial, prevented retrial on Double Jeopardy

grounds. In Vogt, we concluded that the state’s misconduct could have been the product of

negligence and not intended to invite a mistrial. Id. at ¶ 51.

{¶ 18} The Double Jeopardy Clauses of the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, and Article I, Section 10 of

the Ohio Constitution, protects a criminal defendant against repeated prosecutions for the same

offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); State v.

Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 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

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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, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), quoting Green v. U.S., 355

U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

{¶ 19} We recognize that the circumstances in which Double Jeopardy will bar a retrial after

a defendant requests a mistrial are limited. Generally, when a trial court grants a defendant’s

request for a mistrial, the Double Jeopardy clause will not bar a re-trial. However, courts have

distinguished between mistrials that resulted from prosecutorial misconduct versus negligence.

When prosecutorial misconduct is designed to provoke mistrial, Double Jeopardy will bar retrial.

State v. Anderson, 148 Ohio St.3d 74, 80; State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988),

syllabus; see also Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

“This court has also noted that the prohibition against double jeopardy precludes a second trial

absent (1) a mistrial justified by a ‘manifest necessity’ or (2) consent to the mistrial by the

defendant.” Vogt, id., at ¶ 50. “A retrial is not barred on double jeopardy grounds where the state’s

mere negligence, rather than intentional misconduct, required the trial court to grant a mistrial on a

defense motion.” Vogt at ¶ 51, citing State v. Hodges, 7th Dist. Mahoning No. 17MA0025,

2018-Ohio-447.

{¶ 20} In the case sub judice, obviously the chain of events and the timing of the prosecutor’s

transgression greatly concerned the trial court. Almost immediately after the in-chambers

conference, when the prosecutor advised and assured the court that reference to the defendant’s

alleged statement regarding prior OVI convictions “was never part of the opening and will not be,”

the prosecutor, instead, explicitly referred to the defendant’s statement during its opening statement.

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We point out that, generally, a trial court’s determination as to whether a prosecuting attorney

intended to cause a mistrial is a finding of fact that must be accorded great deference. State v. Betts,

8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, 2007 WL 3027063. Here, we fully understand the

trial court’s concerns and we defer to the court’s apparent finding of fact. Here, in view of the

blatant and obvious nature of the transgression, especially after the assurance provided to the court,

we do not believe it necessary for the trial court to hear additional evidence or argument.

Accordingly, based upon the foregoing reasons, we overrule appellant’s second and

third assignments of error and we affirm the trial court’s judgment.