¶1 dissenting.
¶2 I disagree with the majority opinion that the trial court erred by denying appellant’s motion to dismiss for prosecutorial misconduct and by subsequently declaring a mistrial as set forth in the third assignment of error.
¶3 The opinion cites State v. Glover, supra, in which a trial court sua sponte declared a mistrial. In Glover, the Ohio Supreme Court stated that double jeopardy does not bar retrial unless the judge’s action was instigated by prosecutorial misconduct designed to provoke a mistrial, or the declaration of a mistrial constituted an abuse of discretion by the trial court.
¶4 Neither of the conditions enumerated in Glover is present in this case. The prosecutor’s action in revealing the identity of the confidential informant in opening statement after persuading the trial court, about three months before trial, to issue a pretrial order maintaining the confidentiality of the informant because of concern for his security does not constitute prosecutorial misconduct designed to provoke a mistrial under the circumstances of this case.
¶5 Without expressing any conclusion as to the judgment of the prosecutor in dealing with the situation involving similarities in name and appearance between appellant and the informant, it is obvious that the prosecutor had a substantial concern for the possibility of confusion being created in the minds of the jurors in this case. It does not appear that the prosecutor’s action was designed to provoke a mistrial, but that he was attempting to pursue a trial strategy to reduce the possibility of such confusion by acknowledging these existing similarities in opening statement.
¶6 I further disagree with the majority’s conclusion that the trial court abused its discretion in sua sponte declaring a mistrial. After the identity of the confidential informant was revealed by the prosecutor, opening statements were completed and the testimony of some witnesses was presented before defense counsel moved for dismissal of the case with prejudice. The trial court denied that motion and recessed the trial to provide the defense with the opportunity to locate and subpoena the informant. When the option of continuing the trial with *72 the same jury ultimately proved not to be feasible, then the trial court ordered a mistrial in this matter over the objection of defense counsel.
¶7 Unlike Glover, here the trial court had a substantial and logical basis for sua sponte declaring a mistrial. In applying the established definition of “abuse of discretion” to the facts and circumstances of this case, I do not agree that the trial court abused its discretion in denying appellant’s motion to dismiss for prosecutorial misconduct. Therefore, I would not find appellant’s third assignment of error well taken, and I would affirm the trial court.