*

The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0043p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JAMES PHILLIPS,

 Petitioner-Appellant,

v.

COURT OF COMMON PLEAS, HAMILTON

COUNTY, OHIO,

 Respondent-Appellee.

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No. 10-4280

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 09-00064—Susan J. Dlott, Chief District Judge.

Argued: January 10, 2012

Decided and Filed: February 10, 2012 

Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

_________________

COUNSEL

ARGUED: Ravert J. Clark, Cincinnati, Ohio, for Appellant. Philip R. Cummings,

HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellee.

ON BRIEF: Ravert J. Clark, Cincinnati, Ohio, for Appellant. Philip R. Cummings,

HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellee. 

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. James Phillips appeals the district court’s denial of his

pretrial petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. After the state

trial court granted Phillips’s motion for a mistrial, the State of Ohio sought to retry him.

1
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 2

He moved to dismiss the indictment on double jeopardy grounds, but the state court

denied his motion. This habeas petition followed. We affirm. 

I.

James Phillips was indicted in the Hamilton County Court of Common Pleas on

two counts of Unlawful Sexual Conduct with a Minor, in violation of Ohio Rev. Code

§ 2907.04(A), and one count of Gross Sexual Imposition, in violation of Ohio Rev. Code

§ 2907.05(A)(1). The indictment alleged that one count of Unlawful Sexual Conduct

with a Minor occurred on an undetermined date in May 2006. It alleged further that a

second count of the same offense and one count of Gross Sexual Imposition occurred on

an undetermined date in June 2006. A bill of particulars identified the same dates. 

The prosecution’s theory was that Phillips, a neighbor and family friend of

thirteen-year-old D.B. and her foster mother, on two occasions engaged in unlawful

sexual conduct with D.B., the second time using a threat of force. According to the

prosecution, the first incident took place while D.B. was at Phillips’s house using his

computer. After engaging in sexual conduct, Phillips used a digital camera to take

photographs of D.B. topless. During the second incident, again at Phillips’s house,

Phillips fondled D.B. over her objection. D.B. later reported both incidents to her foster

mother and to police. Phillips’s defense at trial was that D.B. made everything up to

protect her foster mother, whom Phillips had allegedly threatened. 

A visiting judge presided over the trial. The state’s first witness was David

Ausdenmoore, a computer forensics expert with the Cincinnati Police Department.

Ausdenmoore testified regarding his forensic examination of two computers, a separate

hard drive, and a digital camera, all seized from Phillips’s residence. He found five

photographs of a topless D.B. in the deleted space of the digital camera’s memory card.

Each was electronically imprinted with a date of December 18, 2005. He also examined

the internet history from December 1, 2005, to July 26, 2006, for one of the seized

computers. According to the computer’s clock, which Ausdenmoore testified was

“pretty accurate,” the first internet usage during that period was on December 18, 2005,

the same date indicated on the photographs. The computer contained various user
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 3

profiles, including “Shadow Roth,” a name later established to be one D.B. frequently

used as an internet login. The computer’s internet activity log for the night of December

18, 2005, showed that the user Shadow Roth accessed various websites throughout the

night. Some websites required the visitor to self-identify, and the visitor identified using

D.B.’s name. 

The next witness was D.B. She testified that she lived with her foster mother

from the time she was two-and-a-half years old, and that she used to be friendly with

Phillips. According to D.B., the first incident occurred as she was getting ready for bed

and Phillips visited her home after work. D.B. told Phillips that her computer was not

working and asked to use his. He obliged, and they left with the permission of D.B.’s

foster mother. Before arriving at Phillips’s home, Phillips stopped to purchase

cigarettes, beer, and food. During the drive, Phillips made remarks of a sexual nature,

and D.B. engaged in the conversation but felt uncomfortable. The two later drank beer,

smoked marijuana, and watched pornography. At some point during the night, while

D.B. was lying on Phillips’s bed, he began touching her breasts. She tensed up, he told

her to relax, she did, and he continued. D.B. removed her shirt and Phillips took pictures

of her topless. The two later engaged in sexual intercourse. At some point during the

night, D.B. used Phillips’s computer to access various websites, at times using her name

and “Shadow Roth” as login names. 

D.B. testified that this occurred in May 2006. The prosecutor asked whether it

was possible that the incident occurred on December 18, the date indicated on the

photographs and internet history, but before she could answer, she was interrupted by

an objection that the court sustained. At sidebar, defense counsel reminded the court that

the indictment and bill of particulars alleged that the first incident occurred sometime

in May 2006, not on December 18, 2005, that he had prepared a defense around the May

2006 date, and that it would be unfair to allow the line of questioning to continue. The

prosecutor responded that he was permitted under the Ohio Rules of Criminal Procedure

to amend the indictment at any time to conform it to the evidence. When the court asked

why he had not amended the indictment upon receiving the forensic report including the
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 4

December 18 date, the prosecutor said that he first became aware of the December 18

date the morning of the first day of trial. 

Following a discussion with the parties in chambers, the court made its final

ruling on Phillips’s objection and the prosecutor’s implicit motion to amend the

indictment. It noted that an amendment would prejudice Phillips in the following way:

if the indictment had alleged a December 18 date, Phillips would have investigated and

prepared a defense for that date, but now it was too late because trial had already begun.

Even though the prosecutor had disputed the existence of prejudice, stating that defense

counsel had the photographs and internet history well before trial, the court found

prejudice and noted that the prosecutor, too, had received the pictures and internet

history earlier, and that it was his duty to amend the indictment before trial. The court

stated that it would not allow an amendment and would not permit the prosecutor to

question D.B. further regarding the date of the first incident. It also would not grant a

mistrial because neither party wanted one. It would, however, reconsider amending the

indictment if the prosecutor filed a motion citing some authority. 

The prosecutor completed his direct examination of D.B. On cross-examination,

defense counsel elicited damaging testimony, including inconsistencies between D.B.’s

trial testimony and her initial statement to police, and an admission that she would lie

to protect her foster mother if she had to. 

The following day, the prosecutor filed a motion to amend the indictment to

allege that the first offense occurred on an undetermined date between December 2005

and May 2006. Citing Ohio Criminal Rule 7(D) and some cases, the prosecutor asserted

that the court had improperly conflated the analysis under the Rule and considered

whether Phillips would be prejudiced when it determined whether to allow an

amendment, rather than determining the existence of prejudice only when considering

whether to grant a mistrial. At a hearing the next day, defense counsel again argued that

the opportunity to amend had long passed. He argued further that an amendment was

not warranted under Rule 7(D) because there had been no variance or defect in the

indictment, and that the prosecutor was merely using the Rule as a subterfuge to fix a
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 5

problem inherent in his case. Noting the court’s earlier-stated reluctance to continue the

trial with the same jury after a lengthy recess to allow Phillips to explore other defenses,

Phillips’s counsel argued that he was forced to seek a mistrial in order to further

investigate the new date. 

The prosecutor pointed out in response that the computer forensics report

indicating the December 18, 2005, date on the photos and internet history was created

at the request of defense counsel, and that he (the prosecutor) had not paid it any

attention when he received it. He admitted that he should have reviewed the report but

failed to do so, and that in hindsight he would have reviewed it and amended the

indictment earlier. He insisted, however, that Rule 7(D) allowed him to amend the

indictment even at this late stage in the proceedings. 

The court granted the prosecutor’s motion to amend. It stated that failing to

amend the indictment until mid-trial was not part of a “deliberate ploy on the part of the

prosecutor,” but was “basically a failure to look at [the] case with the thoroughness that

might have been required or not perceiving in a busy schedule the difference of certain

facts in the case.” It was “a matter of negligence, as far as [the court could] see, at worst,

a matter of negligence or [inadvertence].” The court found, nevertheless, that Phillips

had been prejudiced by the amendment because he was deprived of the opportunity to

investigate the earlier date prior to trial and formulate a defense as to the new dates.

Continuing the trial with the same jury was not feasible. It advised that it would grant

a mistrial at Phillips’s request. Defense counsel made a motion, and the court granted

it.

The indictment was amended to allege that the offense charged in count one took

place on an indeterminate date between December 1, 2005, and May 31, 2006. Phillips

moved to dismiss the indictment, arguing that a retrial would violate the prohibition on

double jeopardy because, by amending the indictment mid-trial, the prosecutor had

intended to goad Phillips into requesting a mistrial. See Oregon v. Kennedy, 456 U.S.

667 (1982). He surmised that the prosecution was proceeding so poorly that the

prosecutor’s only alternative to an acquittal was to start over. The prosecutor responded
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 6

1

Phillips did not object to the report and recommendation’s application of § 2254, nor does he

assert any error in this regard on appeal. Even so, we have previously held that a petitioner cannot forfeit

or waive the standards that apply to habeas petitions. Brown v. Smith, 551 F.3d 424, 428 & n.2 (6th Cir.

2008). 

that “nothing could be further from the truth,” stating that “[t]he [victim’s] testimony

was not going to change from one trial to another,” and that “the State ha[d] no interest

in intentionally putting a fifteen-year-old girl through another round of crossexamination.” He stated that he sought the amendment “to make sure the jury was

properly instructed on what [the state] had to prove about when the first offense

occurred.” Stating only that Phillips’s motion was “not well taken,” the presiding judge

(not the visiting judge, who presided at trial) denied the motion in a summary order,

apparently relying on the visiting judge’s determination that the mid-trial amendment

was not the result of a deliberate ploy on the part the prosecutor, but rather a failure to

adequately prepare the case for trial. 

Phillips filed the instant habeas petition under 28 U.S.C. § 2241, renewing his

double jeopardy claim. The district court adopted a magistrate judge’s recommendation

to deny the petition and issued a certificate of appealability. Phillips timely appealed.

II.

We consider at the outset the legal standards applicable to Phillips’s petition,

recognizing that we give fresh review to the district court’s decision. See Ayers v.

Hudson, 623 F.3d 301, 307 (6th Cir. 2010). Phillips filed his petition under 28 U.S.C.

§ 2241, but the district court evaluated it under § 2254 and concluded that the state

court’s denial of Phillips’s motion to dismiss was not contrary to, and did not involve an

unreasonable application of, Supreme Court precedent, and that Phillips had failed to

rebut with clear and convincing evidence the presumption of correctness that applied to

the state trial court’s factual findings. See 28 U.S.C. § 2254(d)(1), (e)(1). It erred by

applying § 2254.1
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 7

2

Phillips satisfies the “in custody” requirement of the statute even though he has been released

and remains on bond pending his retrial. See Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 300-01

(1984). 

Congress’s general grant of habeas authority to the federal courts appears in 28

U.S.C. § 2241, which extends the writ to, among others, persons “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).2

One section of the habeas statute – section 2254 – concerns habeas relief available to a

subset of petitioners: those “in custody pursuant to the judgment of a State court . . . .”

Id. § 2254(a) (emphasis added). Although Phillips remains “in custody,” his custody is

not “pursuant to the judgment of a State court.” Rather, he is in custody pursuant to an

indictment. Section 2254, therefore, by its own terms, does not apply to Phillips’s

petition, and it would be error to apply § 2254 here. We have long recognized that

pretrial detainees pursue habeas relief instead under § 2241. See Girts v. Yanai, 600

F.3d 576, 587 (6th Cir. 2010); Atkins v. Michigan, 644 F.2d 543, 546 n.1 (6th Cir. 1981).

Our review of state court decisions differs significantly depending on which

section of the habeas statute applies. For habeas petitions filed under § 2254, we may

not grant relief on the basis of an incorrect factual determination by a state court unless

the determination was “unreasonable . . . in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2). And where habeas relief under § 2254 is

predicated on a state court’s alleged misapplication of the law to the facts, federal relief

is prohibited unless the application of Supreme Court precedent was “unreasonable.”

Id. § 2254(d)(1). Congress imposed these standards when it passed the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), and they are intended to be difficult to

meet. Harrington v. Richter, 131 S. Ct. 770, 786 (2011). 

The standards that apply to § 2241 petitions, by contrast, are significantly less

demanding. The First, Fifth, Ninth, and Tenth Circuits have concluded that the

deference that § 2254(d) requires never applies to habeas petitions brought by pretrial

detainees under § 2241, and no circuit to our knowledge has held otherwise. See

Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011); Walck v. Edmondson, 472 F.3d

1227, 1234-35 (10th Cir. 2007); Stow v. Murashige, 389 F.3d 880, 885-86 (9th Cir.
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 8

3

Our decisions in Harpster v. Ohio, 128 F.3d 322 (6th Cir. 1997), and Ross v. Petro, 515 F.3d

653 (6th Cir. 2008), do not foreclose today’s holding. In both cases, we applied § 2254(d) to habeas

petitions challenging pretrial custody without recognizing that the petitions were properly governed by

§ 2241. Therefore, those cases did not squarely address the issue we decide today. 

4

Unlike exhaustion under § 2254, exhaustion under § 2241 is not a statutory requirement.

Compare 28 U.S.C. § 2254(b)(1)(A), with id. § 2241. Rather, in the § 2241 context, “decisional law has

superimposed such a requirement in order to accommodate principles of federalism.” United States ex rel.

Scranton v. New York, 532 F.2d 292, 294 (2d Cir. 1976) (citing Ex parte Royall, 117 U.S. 241, 252-53

(1886), and Fay v. Noia, 372 U.S. 391 (1963)); cf. Fisher v. Rose, 757 F.2d 789, 792 (6th Cir. 1985)

(noting that alleged speedy-trial violation challenged before trial generally requires exhaustion). 

2004); Gonzalez v. Justices of Mun. Ct. of Boston, 382 F.3d 1, 6-7 (1st Cir. 2004),

judgment vacated on other grounds, 544 U.S. 918 (2005). As the Fifth Circuit recently

stated in Martinez, “[t]he deferential standard afforded to state court decisions, which

is specifically articulated in § 2254, is not included in the text of § 2241.” 644 F.3d at

242. Furthermore, AEDPA significantly amended § 2254(d) but left untouched § 2241,

and courts operate on the assumption that “‘Congress acts intentionally and purposely

when it includes particular language in one section of a statute but omits it in another.’”

Id. (quoting City of Chicago v. Env’t Def. Fund, 511 U.S. 328, 338 (1994)). We agree

with our sister circuits and hold that habeas petitions governed by § 2241 are not subject

to the heightened standards contained in § 2254(d).3

 Accordingly, we must conduct a

de novo review of the state court proceedings in addressing Phillips’s petition. See

Martinez, 644 F.3d at 242; Walck, 472 F.3d at 1235.

III.

Phillips claims that a retrial would violate the constitutional prohibition on

double jeopardy. Before we address the merits of the claim, however, we pause briefly

to discuss the issue of exhaustion. Habeas petitioners must exhaust all available state

court remedies before proceeding in federal court, and this usually requires that they

appeal an adverse decision all the way to the state’s court of last resort. Klein v. Leis,

548 F.3d 425, 429 n.2 (6th Cir. 2008).4

 But in Ohio, a trial court’s denial of a

defendant’s motion to dismiss on double jeopardy grounds is not an order subject to

judicial review before a retrial. Wenzel v. Enright, 623 N.E.2d 69, 72 (Ohio 1993).

Therefore, Phillips was unable to seek direct review of the trial court’s decision. But

because the Double Jeopardy Clause prevents being twice placed in jeopardy for the
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 9

5

In a jury trial, jeopardy attaches once a jury is empaneled and sworn. Crist v. Bretz, 437 U.S.

28, 38 (1978). 

same offense – that is, simply being tried twice for the same offense – to “enjoy the full

protection of the Clause, [a defendant’s] double jeopardy challenge . . . must be

reviewable before [the] subsequent exposure occurs.” Abney v. United States, 431 U.S.

651, 662 (1977). Accordingly, we have held that “the federal adjudication of double

jeopardy claims raised on pre-trial petitions for habeas corpus is appropriate when those

claims have been raised and rejected in the state trial court and under state law there is

no right to interlocutory appeal.” Harpster, 128 F.3d at 325. Because Phillips moved

to dismiss the indictment in state court, consideration of his claim is appropriate.

The Fifth Amendment’s Double Jeopardy Clause, applicable to the states through

the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S.

784, 787 (1969), “protects a criminal defendant from repeated prosecutions for the same

offense.” Oregon v. Kennedy, 456 U.S. 667, 671 (1982). Stated otherwise, the clause

“affords a criminal defendant a ‘valued right to have his trial completed by a particular

tribunal.’”5

 Id. at 672-73 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). That

right, however, is not absolute, and the Clause does not guarantee that the state’s interest

in enforcing the criminal laws against a defendant will be vindicated in a single trial. Id.

at 673. For example, where a trial is terminated at the defendant’s urging, the Double

Jeopardy Clause does not bar a retrial. Id. at 673. 

Under a “narrow exception” to this general rule, id. at 673, where “the conduct

giving rise to the [defendant’s] successful motion for a mistrial was intended to provoke

the defendant into moving for a mistrial,” the defendant “may invoke the bar of double

jeopardy in a second effort to try him.” Id. at 679; see id. at 676 (“Only where the

governmental conduct in question is intended to ‘goad’ the defendant into moving for

a mistrial may a defendant raise the bar of double jeopardy to a second trial after having

succeeded in aborting the first on his own motion.”). “[T]his standard is exacting.”

Martinez, 644 F.3d at 243. “Prosecutorial conduct that might be viewed as harassment

or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 10

not bar retrial absent intent on the part of the prosecutor to subvert the protections

afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at 675-76. The

prosecutor’s intent, then, is what matters. Intent generally is inferred from objective

facts and circumstances. Id. at 675; see also id. at 680-81 (Powell, J., concurring)

(“Because ‘subjective’ intent often may be unknowable, I emphasize that a court – in

considering a double jeopardy motion – should rely primarily upon the objective facts

and circumstances of the particular case.”). 

In this case, Phillips contends that the prosecutor sought to amend the indictment,

hoping and intending that Phillips would seek a mistrial were the court to allow

amendment. He posits that his attorney had severely impeached D.B. and thereby

significantly weakened the prosecutor’s case, so the only way to prevent an acquittal was

to start over by getting Phillips to successfully seek a mistrial. According to Phillips, in

order to “goad” him into seeking a mistrial, the prosecutor sought to amend the

indictment to allege that the first incident occurred between December 1, 2005, and

May 31, 2006, which would provoke Phillips to seek a mistrial to give him the

opportunity to investigate a defense to that period of time. We find that this theory lacks

record support and is contrary to the factual finding of the state trial court that the

amendment was caused by the prosecutor’s negligence in preparing the case for trial.

Although we review the state proceedings de novo, we nevertheless find it appropriate

to give deference to the trial court’s factual finding regarding the intent of the prosecutor

because it was in the best position to make the finding. Cf. United States v. White, 914

F.2d 747, 752 (6th Cir. 1990) (according “great deference” on direct appeal to the

district court’s determination of the prosecutor’s intent). 

Phillips asserts that the state court’s finding should be given little to no deference

because it was made by a visiting judge assigned the case the morning of trial “who

knew nothing about the case” and was therefore in a weak position to make the

determination. We disagree, but regardless of the deference we owe the judge’s finding

as a legal matter, we find that the record fully supports it. 
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 11

6

In this regard, the trial court noted that, without an amendment to the date of the first charge

alleged in the indictment, there were still two other charges that were “viable,” i.e., those arising out of the

second alleged incident. 

The colloquy between the court and the parties at sidebar demonstrated that the

prosecutor had made a mistake in preparing the case for trial. It seems clear from the

documentary evidence that the first incident, if it did happen, occurred on December 18,

2005, not on some day in May 2006, as the indictment alleged. (The internet history and

photographs bear the December 2005 date, and there is no indication that the date borne

by the evidence is unreliable.) D.B. told investigators that the incident occurred in May

2006, but in light of the hard evidence in the case, it seems fairly certain that she is

mistaken. 

Because the evidence at trial varied from the date alleged in the indictment, the

prosecutor sought to amend the indictment to conform it to the evidence, a course of

action Ohio’s court rules permitted him to pursue. Time is not an essential element of

the offense of Unlawful Sexual Conduct with a Minor, see Ohio Rev. Code

§ 2907.04(A), so a prosecutor need only show that the offense took place on a date

reasonably close to the one charged in the indictment. State v. Carey, 157 N.E.2d 381,

386 (Ohio Ct. App. 1958); see also Ohio Crim. Instr. 413.07(1)(A). Because the

indictment charged an indeterminate date in May 2006, the prosecutor risked an acquittal

based solely on a technicality: the jury could conclude that the December 18 date was

not reasonably close to the charged date and acquit for that reason, even if it found that

the incident did in fact occur, just on a different date.6

 To remedy the variance, the

prosecutor sought to amend the indictment to conform it to the evidence adduced at trial.

The prosecutor’s purpose in seeking an amendment was to get an amendment that would

help to secure a conviction, not to provoke a mistrial. His negligence in preparing the

case for trial, negligence which later gave rise to the amendment and, consequently, the

mistrial, is not enough to meet the narrow exception to retrial recognized in Kennedy.

See United States v. El-Mezain, 664 F.3d 467, 561-62 (5th Cir. 2011); United States v.

Thomas, 728 F.2d 313, 318 (6th Cir. 1984), abrogated on other grounds by United States

v. Carroll, 26 F.3d 1380 (6th Cir. 1994); see also White, 914 F.2d at 752 (holding that
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 12

a mistrial caused by conduct motivated by prosecutorial inexperience, even if deliberate,

did not bar a retrial under Kennedy). 

Phillips resists this conclusion and argues that the prosecutor’s intent may be

inferred from the fact that he did not oppose a mistrial and was not surprised when

Phillips requested one. Phillips draws heavily on Justice Powell’s concurrence in

Kennedy and our decision in White, both of which recognized that a prosecutor who is

surprised by and later opposes a defendant’s motion for a mistrial generally has not

intended to provoke a mistrial. We find the reliance misplaced. Initially, the prosecutor

did oppose the basis for a mistrial when he argued that Phillips would suffer no prejudice

by the amendment and that any claim to the contrary was “disingenuous” because

defendant’s counsel was in possession of the internet history and date-stamped

photographs well before trial. Regardless, given the trial court’s earlier finding during

the sidebar conference that Phillips would be prejudiced by an amendment and the

court’s later statement during the motion hearing that it was not inclined to grant a

continuance, it would surprise no one that Phillips would seek a mistrial and that the

court would grant one. The lack of surprise to the request is thus of no import here.

Moreover, there was little the prosecutor could say or do at that point to oppose

Phillips’s request for a mistrial because Ohio Criminal Rule 7(D) entitles a defendant to

one if he has been misled or prejudiced by the defect or variance the amendment is

intended to cure. So the lack of a vigorous opposition to his mistrial motion is also of

little help to Phillips. 

Phillips argues that the weaknesses in the case that were unearthed as the trial

progressed demonstrate that the prosecutor wanted a mistrial and acted in a calculated

attempt to goad Phillips into requesting one. But any such weaknesses are inherent in

the case and will not be obviated in a retrial, so the prosecutor gained no advantage by

the mistrial, making it less likely that he goaded Phillips. Any retrial is sure to be

plagued with the same problems present at the first trial. Among other inconsistencies

in her testimony, D.B. told police in her initial statement that the incident occurred in

May 2006, a date that does not match the dates of the photographs and internet history.
No. 10-4280 Phillips v. Ct. of Common Pleas, Hamilton County, Ohio Page 13

And she testified under oath at the first trial that the incident occurred in May 2006,

testimony that potentially can be used to impeach her at a retrial if she changes her story.

Furthermore, her close relationship with her foster mother and admitted willingness to

lie to protect her – very damaging evidence for the prosecution in a case that is based

almost entirely on the testimony of the victim – will again be fair game at a retrial. 

IV.

Phillips has not demonstrated that the prosecutor sought to amend the indictment

in order to goad Phillips into moving for a mistrial. The district court properly

determined that Phillips failed to make a showing under Kennedy’s narrow exception to

the rule that allows a defendant to be retried when the first trial is terminated at the

request of the defendant. We affirm.