[Cite as State v. Wilson,
2021-Ohio-3192.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
BRANDON WILSON : Case No. 2021 CA 0011
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2020 CR 00254
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 15, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS APRIL CAMPBELL
20 South Second Street 46½ North Sandusky Street
Fourth Floor Delaware, OH 43015
Newark, OH 43055
Licking County, Case No. 2021 CA 0011 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Brandon Wilson, appeals the February 10, 2021
judgment entry of the Court of Common Pleas of Licking County, Ohio, denying his motion
for discharge. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 4, 2020, the Licking County Grand Jury indicted appellant on one
count of felonious assault in violation of R.C. 2903.11 and one count of assault in violation
of R.C. 2903.13. Said charges arose from the beating of two victims by appellant and a
co-defendant.
{¶ 3} A jury trial was scheduled for November 19, 2020. Two days before trial,
appellant filed a motion in limine to exclude testimony from two doctors the state planned
on calling. Appellant argued the state failed to disclose reports regarding their testimony
and failed to include a summary of their qualifications pursuant to Crim.R. 16(K) and State
v. Boaston, 160 Ohio St.3d 46,
2020-Ohio-1061,
153 N.E.3d 44.
{¶ 4} On November 19, 2020, the trial court swore a jury in and then asked
counsel if anything needed to be put on the record. Defense counsel preserved for the
record the motion in limine to exclude the doctors' testimony. The trial court entertained
argument on the issue. The state argued it timely provided the victims' medical records,
but provided the doctors' curricula vitae the day before trial. The trial court ruled the
doctors could testify as fact witnesses, but not as experts. After consulting with appellant,
defense counsel requested a continuance to conduct research and obtain written reports
Licking County, Case No. 2021 CA 0011 3
from the doctors. The trial court granted the request and declared a mistrial because the
continuance was granted at appellant's request. Appellant did not object to the mistrial.
{¶ 5} On February 8, 2021, appellant filed a motion for discharge on double
jeopardy grounds. By judgment entry filed February 10, 2021, the trial court denied the
motion, finding appellant requested the continuance and the double jeopardy issue was
invited error.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED WHEN IT DID NOT DISCHARGE WILSON
FROM PROSECUTION: JEOPARDY ATTACHED TO WILSON, SUCH THAT THE
STATE IS BARRED FROM RETRYING HIM IN THIS CASE."
I
{¶ 8} In his sole assignment of error, appellant claims the trial court erred in
denying his motion for discharge on double jeopardy grounds. We disagree.
{¶ 9} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution ensures that a state may not put a defendant in jeopardy twice for the same
offense. Benton v. Maryland, 395 U.S. 784,
89 S.Ct. 2056,
23 L.Ed.2d 707 (1969).
Because the jury in this case had already been empaneled and sworn, jeopardy attached
prior to the declaration of the mistrial. Crist v. Bretz,
437 U.S. 28,
98 S.Ct. 2156,
57
L.Ed.2d 24 (1978). As explained by the Supreme Court of Ohio in State v. Widner,
68
Ohio St.2d 188, 189-190,
429 N.E.2d 1065 (1981):
Licking County, Case No. 2021 CA 0011 4
[T]he question of whether, under the double jeopardy clause, there
can be a second trial, after a mistrial has been declared, sua sponte,
depends on whether (1) there is a "manifest necessity" or a "high degree"
of necessity for ordering a mistrial, or (2) "the ends of public justice would
otherwise be defeated." The foregoing concept of "the ends of public
justice" has also been more precisely described as "the public's interest in
fair trials designed to end in just judgments." (Citations omitted.)
{¶ 10} "In cases where a trial court judge sua sponte declares a mistrial, the
Double Jeopardy Clause generally does not bar retrial unless prosecutorial misconduct
led the judge to declare a mistrial, or the declaration was an abuse of discretion." (Citation
omitted.) State v. Graber, 1st Dist. Hamilton No. C-190244 2020-Ohio-5324, ¶ 16. "
'[T]he trial judge is in the best position to determine whether the situation in [the]
courtroom warrants the declaration of a mistrial.' [State v.] Glover, 35 Ohio St.3d [18] at
19,
517 N.E.2d 900. This court will not second-guess such a determination absent an
abuse of discretion." (Citation omitted.) State v. Ahmed,
103 Ohio St.3d 27, 2004-Ohio-
4190,
813 N.E.2d 637, ¶ 92. In order to find an abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary or unconscionable and not merely
an error of law or judgment.
{¶ 11} After the jury was sworn, appellant preserved for the record "the motion in
limine requesting exclusion of the two doctors under Boaston." T. at 7. In State v.
Boaston, 160 Ohio St.3d 46,
2020-Ohio-1061,
153 N.E.3d 44, paragraph one of the
syllabus, the Supreme Court of Ohio held: "State's violation of rule requiring disclosure of
Licking County, Case No. 2021 CA 0011 5
expert opinions in written report required exclusion of expert testimony." Appellant argued
although he did receive all medical records in a timely manner, he did not receive any
reports from the two doctors in question, and had just received their curricula vitae the
day before trial.
{¶ 12} Upon entertaining argument on the issue, the trial court ruled: "To the extent
that they're testifying as fact witnesses from what they observed, I'll allow them to testify.
I won't permit them to testify as experts." T. at 8. The trial court noted medical records
were provided and asked defense counsel "[w]hat other report are you looking for?" T.
at 9-10. Defense counsel replied: "What I wanted is if they were going to be permitted to
testify as experts, what their findings might be so I'm not surprised by it." T. at 10. The
trial court asked defense counsel if she wanted a continuance to obtain additional
information, but made it very clear that the doctors would not be giving expert testimony,
they would be testifying to "their firsthand observation as a fact witness of what they saw."
Id. Defense counsel consulted with appellant and then asked the trial court for the
continuance "so that we can get written reports from the doctors." T. at 11. The trial court
remarked there were no other written reports to receive, and defense counsel argued the
following (T. at 12):
They're going to bring in as a demonstrative exhibit skulls and explain
the different fractures or whatever. I don't know what they're going to
explain is my point.
Licking County, Case No. 2021 CA 0011 6
I do want a continuance if I'm going to do the proper research, talk to
these doctors and figure out what they're going to say. I just need to know
what they're going to say is my issue which is what I think Rule 16 does.
{¶ 13} The prosecutor explained the demonstrative exhibits were for the doctors
to explain what the injuries were and how they were fixed, not how they were incurred.
The trial court granted the continuance, noting it was at appellant's request. T. at 13. The
trial court then declared a mistrial and defense counsel did not object to the order of
mistrial. T. at 14.
{¶ 14} In his appellate brief at 5, appellant argues in ordering the mistrial, "there
was no manifest necessity. Nor would the ends of public justice be defeated." Appellant
argues the trial court had other remedies available than to declare a mistrial. One was to
grant his "request for exclusion of those two doctors from testifying as experts."
Appellant's Brief at 6. The trial court did so. The trial court clearly stated they would be
testifying as fact witnesses only. Appellant further argues "even if a continuance was a
good remedy, there is no need to discharge the jury by granting one." Id. Appellant did
not argue that a short continuance was needed. In fact, defense counsel argued she
wanted to conduct "proper research" and talk to the doctors, even though she had been
given their names in a timely manner and could have done so prior to trial. The only items
appellant did not receive in a timely matter were the doctors' curricula vitae and as a
result, the trial court limited their testimony. A curriculum vitae merely lists an expert's
qualifications and does not contain any reports or opinions. The request for the
continuance and the subsequent mistrial cannot be attributed to the state. It is not
Licking County, Case No. 2021 CA 0011 7
unreasonable to assume that the continuance would have been rather lengthy and the
trial court was not required to "hold" the jury for an indefinite period of time. The trial court
did not abuse its discretion in sua sponte ordering the mistrial; therefore, double jeopardy
was not an issue.
{¶ 15} Upon review, we find the trial court did nor err in denying appellant's motion
for discharge.
{¶ 16} The sole assignment of error is denied.
{¶ 17} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Wise, J., P.J. and
Delaney, J. concur.
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