Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

David W. Stone IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Supervising Deputy Attorney 

General

Andrew Kobe

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dontez West and 

Kyree Guajardo,

Appellants-Defendants,

v.

State of Indiana,

Appellee-Plaintiff.

November 27, 2019

Court of Appeals Case No.

19A-CR-414

Interlocutory Appeal from the 

Madison Circuit Court

The Honorable David A. Happe, 

Judge

Trial Court Cause Nos.

48C04-1804-F2-1127

48C04-1805-F2-1267

48C04-1709-F4-2230

48C04-1805-F2-1268

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019 Page 2 of 18

[1] Dontez West (“West”) and Kyree Guajardo (“Guajardo”) (collectively “the 

Defendants”) bring this interlocutory appeal from the Madison Circuit Court’s 

denial of their motions to dismiss the criminal charges against them after their 

first trial ended in a mistrial. On appeal, the Defendants claim that a retrial 

would constitute double jeopardy and that the trial court therefore erred in 

denying their motions to dismiss. Concluding that a retrial does not subject the 

Defendants to double jeopardy, we affirm. 

Facts and Procedural History

[2] On August 29, 2017, a “known source,” later revealed to be Eric Troutman

(“Troutman”), informed officers of the Anderson Police Department (“APD”) 

that he had seen Tiras Johnson (“Johnson”) in possession of a “half brick” of 

cocaine, multiple firearms, and a safe believed to contain a large amount of 

cash at Johnson’s home on Beverly Court in Anderson, Indiana. Appellants’ 

Confidential App. Vol. 3, p. 148. A subsequent search of Johnson’s home

revealed multiple handguns, a large amount of cash, a safe containing a white, 

powdery residue that appeared to be cocaine, marijuana, approximately 

thirteen ounces of methamphetamine and approximately twenty-four ounces of 

cocaine. 

[3] Subsequent investigation led to the State charging Johnson, Troutman, and the 

defendants West and Guajardo with various drug-related offenses. With regard 

to West, the State ultimately charged him with two counts of Level 3 felony 

dealing in cocaine, two counts of Level 6 felony dealing in marijuana, and one 

count each of Level 2 felony conspiracy to commit dealing in cocaine, Level 3 
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felony possession of cocaine, Level 5 felony corrupt business influence, and 

Level 6 felony money laundering. The State charged Guajardo with Level 2 

felony conspiracy to commit dealing in cocaine, Level 5 felony corrupt business 

influence, and Level 6 felony money laundering. 

[4] On October 23, 2018, Troutman entered into a plea agreement with the State 

that provided in part that he would, as a condition of his sentence, “testify fully 

and truthfully in all pretrial hearings, depositions and at trial, if called as a 

witness” in the State’s cases against West, Guajardo, and Johnson. Appellants’

App. Vol. III, p. 146. 

[5] On November 16, 2018, counsel for West and Guajardo deposed Troutman. 

During his deposition, Troutman stated that he knew that he could obtain 

cocaine from West and that he sold cocaine he had bought from West for a 

profit in order to fund his drug habit. With regard to Johnson, West’s counsel 

questioned Troutman as follows: 

Q. Okay. And then with Tiras [Johnson], what’s your 

involvement with Tiras as far as this case goes?

A. I mean I’ve known him for a long time. I really . . . I’ve 

never bought anything off of him.

Q. Okay. Earlier today I took Detective Gaskill’s deposition, 

and we’ll talk more about this in a minute, but before you 

plead[ed] guilty, or after you plead[ed] guilty, sometime 

around then, you sat down with Mr. Miller, your attorney, 

and Keith Gaskill, is that correct?

A. Yes.
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Q. And gave a statement?

A. Yes.

Q. Detective Gaskill said that you said during that that you 

had bought pills [from] Tiras.

A. Yes.

Q. When did that happen? 

A. Probably like a year and a half ago.

Q. Okay. And beyond buying pills that one time, more than 

one time? 

A. You said that buying —

Q. Was that . . . Was it pills that you bought from Tiras? 

A. Yes. I never bought cocaine or anything off of him. 

Q. Did you buy pills from Tiras more than one time?

A. No, just that one time. 

Q. Okay. So as far as cocaine, as it pertains to cocaine, did 

you and Tiras have any interaction at all?

A. No.

Appellants’ App. Vol. 4, pp. 66–67 (emphases added). 

[6] During the discovery process, the State never revealed to the defense that 

Troutman was the “known source” who informed police that Johnson was in 

possession of cocaine. 
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[7] At the joint trial of Guajardo and West, Troutman testified as a witness for the 

State after being granted use immunity. Troutman was a hesitant witness but 

testified that he bought cocaine from West in order to resell it to others. 

[8] Also at trial, APD Sergeant Chad Boynton (“Sgt. Boynton”) testified for the 

State. When asked to describe the circumstances that led to the search of 

Johnson’s home, Sgt. Boynton responded: 

I had received a call from Officer Marty Dulworth, K-9 Officer 

and Community Police Officer with our department, um, with 

the Anderson Police Department I should say. He had received 

information from Eric Troutman regarding what had been 

described as a half brick, a term that I know to refer to as a half 

kilo, of cocaine at [Johnson’s] residence, as well as firearms 

and a large amount of cash currency. . . . Upon receiving that 

information I made an attempt to verify some of the information 

that was put forth, um, which included that Tiras Johnson was 

on in-home detention or community correction sanctions at that -

at that address.

Tr. Vol. 6, p. 22 (emphasis added). After Sgt. Boynton’s testimony, the trial 

court recessed for the day. 

[9] Before the trial resumed the following morning, West’s counsel requested a 

mistrial, arguing that, prior to Sgt. Boynton’s testimony, he and Guajardo’s 

counsel had been unaware that Troutman was the source who informed the 

police of cocaine at Johnson’s home. The defense claimed that the State had 

not disclosed this information during discovery. West’s counsel argued that, 

had he known that Troutman was the known source, he would not have 
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attempted to attack Troutman’s credibility, as his theory of the defense was that 

West dealt in marijuana, not cocaine, and that Johnson was the cocaine dealer. 

The prosecuting attorney did not deny that Troutman’s identity as the source 

had not been revealed but claimed that he mistakenly believed he had disclosed 

this information to the defense. 

[10] The trial court then asked counsel for all parties what the remedy should be for 

the State’s failure to disclose Troutman’s identity as the known source. The 

defense argued for a mistrial. The prosecuting attorney argued against a 

mistrial, suggesting that a continuance and further deposition of Troutman

would be an adequate remedy. The trial court took the matter under advisement 

and, after a recess, granted the defense’s request for a mistrial, stating: 

Mistrials are extreme remedies, they’re not to be used lightly, and 

there is a significant waste of resources when a mistrial is 

declared. And there are harms to the defense that occur, as well, 

when a mistrial is declared. The defendants will remain in 

custody until a retrial can be scheduled when a mistrial [i]s 

granted. In this case, however, the court is persuaded, especially 

with respect to defendant West, that the non-disclosed 

information would have had a significant impact on defense 

strategy that could have had a possible persuasive [e]ffect on the 

jurors in the case. So with great reluctance the court does find at 

this point that mistrial is the only remedy which is adequate to 

address the problem. So I am granting a mistrial in both 

[Defendants’] cases, they’ll be rescheduled for trial. 

Tr. Vol. 6, p. 85. 
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[11] On January 3 and 7, 2019, West and Guajardo, respectively, filed motions to 

dismiss, arguing that their retrial was barred by double jeopardy. The trial court 

held a hearing on the motions on January 11, 2019, at which it heard 

arguments from both parties. At the conclusion of the hearing, the trial court 

denied the motions to dismiss, ruling in relevant part: 

To restate the obvious, there was significant error that was made 

in the discovery process. I think that it’s a simple call to 

characterize that as at least negligent in that there was a duty to 

provide the information. That duty was breached and it resulted 

in har[m] to the defense. So the elements of, um, negligence there 

are simple. The issue that the Court’s asked to decide today 

however is a higher threshold which is that of intent. Because 

we’re not here talking about a discovery violation or remedies for 

a discovery violation, but looking at the possible extreme remedy 

of raising a double jeopardy bar because the State has 

intentionally incited a mistrial. That’s the element of the claim. 

Much of the defense argument was spent kind of going back over 

the circumstances and facts of the discovery violation. And, um, 

the Court notes that no matter how egregious the violation that 

doesn’t get it to a level of double jeopardy bar being raised. It 

must be more than even the intentional wrongful withholding of 

evidence. It has to be the intentional incitement of a mistrial. If 

I look at the facts and interpret them most favorably to the 

defense and assume for the sake of argument here today that the 

State intentionally withheld Brady material for tactical 

advantage, um, what does that mean here? Well, it doesn’t 

answer the question if I assume that. I still have to determine 

whether or not the State intended to incite a mistrial. Not 

whether they did something wrong, not whether they intended 

to hide evidence for tactical advantage, but whether they tried 

to cause a mistrial. I’m not aware of any Indiana case on this 
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Oregon versus Kennedy[1] issue that, uh, doesn’t require that the 

State have an intent to create a mistrial. You have to look at what 

the overall progress of the case had been up to that point. How 

was the State doing at that point. Would there have been a 

substantial benefit to the State in scrapping that trial and starting 

fresh with a new record. And the Court has to find at this point 

that I don’t find there would’ve been a material benefit to the 

State. The State would’ve been left with more inconsistent 

statements from witnesses who at points struggled for consistency 

as it was. There were witnesses who were reluctant to testify and 

it’s doubtful that they would’ve gotten more willing to testify at a 

retrial. And, um, of pretty strong significance is the fact that the 

door had been opened to Mr. Guajardo’s cocaine history, and it’s 

unlikely that that would happen again at a retrial. And that’s a 

fact which certainly weighed heavily in the State’s favor. The 

fact that the State caused the mistrial isn’t enough to raise double 

jeopardy. . . . And I don’t find here that the remedy of double 

jeopardy bar being raised and the cases being dismissed is 

appropriate. I recognize that there is not Indiana authority quite 

on point with this fact pattern but, to the extent that I can extract 

a rule from the existing Indiana cases, the Court would find the 

standard has not been met here. No matter how egregious the 

violation, I don’t find that there was a demonstrated intent on 

the part of the State to cause a mistrial. At best, their 

(indiscernible) there was an intent to hide evidence for a tactical 

advantage that should’ve been disclosed, and this isn’t the 

remedy for that. So, the Court is going to deny the defendants’

motions to dismiss.

Tr. Vol. 6, pp. 123–25 (emphases added). 

1 This is a reference to Oregon v. Kennedy, 456 U.S. 667 (1982), discussed infra. 
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[12] On January 18, 2019, the Defendants requested that the trial court certify its 

order denying their motion to dismiss for interlocutory appeal. The court 

granted this request five days later. On March 22, 2019, this court accepted 

jurisdiction over West’s appeal. We did the same for Guajardo’s appeal one 

week later. We subsequently consolidated both cases, and this appeal ensued. 

Discussion and Decision

[13] The sole issue on appeal is whether the trial court erred in denying the 

Defendants’ motions to dismiss the criminal charges against them. The 

Defendants argue that the prohibitions against double jeopardy in the Fifth 

Amendment to the United States Constitution and Article 1, Section 14 of the 

Indiana Constitution bar their retrial. As we explained in a case addressing a 

similar question: 

The Fifth Amendment to the United States Constitution 

“protects a criminal defendant from repeated prosecutions for the 

same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 

2083, 2087 (1982). The Double Jeopardy Clause further grants a 

defendant the right “to have his trial completed by a particular 

tribunal.” Id. at 671–72, 102 S. Ct. at 2087. In general, when a

defendant elects to terminate the proceedings against him or her, 

double jeopardy does not bar retrial. See id. at 672–73, 102 S.Ct. 

at 2088. However, there is a narrow exception to this rule: 

“The Double Jeopardy Clause does protect a defendant against 

governmental actions intended to provoke mistrial requests 

and thereby to subject defendants to the substantial burdens 

imposed by multiple prosecutions.” Id. at 674, 102 S. Ct. at 

2088 (citation omitted). “[I]f a defendant moves for or consents 

to a mistrial, the defendant forfeits the right to raise a double 

jeopardy claim in subsequent proceedings unless the motion for 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019 Page 10 of 18

mistrial was necessitated by governmental conduct ‘intended 

to goad the defendant into moving for a mistrial.’” Willoughby

[v. State], 660 N.E.2d [570, 576 (Ind. 1996)] (quoting Kennedy, 

456 U.S. at 676, 102 S. Ct. at 2089).

Etter v. State, 56 N.E.3d 53, 55–56 (Ind. Ct. App. 2016) (emphases added), trans. 

denied. 

[14] This constitutional test has been codified at Indiana Code section 35-41-4-3, 

which provides: 

(a) A prosecution is barred if there was a former prosecution of 

the defendant based on the same facts and for commission of the 

same offense and if:

* * *

(2) the former prosecution was terminated after the jury was 

impaneled and sworn or, in a trial by the court without a jury, 

after the first witness was sworn, unless (i) the defendant 

consented to the termination or waived, by motion to dismiss 

or otherwise, his right to object to the termination, (ii) it was 

physically impossible to proceed with the trial in conformity 

with law, (iii) there was a legal defect in the proceedings that 

would make any judgment entered upon a verdict reversible 

as a matter of law, (iv) prejudicial conduct, in or outside the 

courtroom, made it impossible to proceed with the trial 

without injustice to either the defendant or the state, (v) the 

jury was unable to agree on a verdict, or (vi) false statements 

of a juror on voir dire prevented a fair trial.

(b) If the prosecuting authority brought about any of the 

circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this 

section, with intent to cause termination of the trial, another 

prosecution is barred.
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(Emphasis added). 

[15] When evaluating whether the prosecutor intended to cause the termination of 

the trial, our supreme court has held that “[t]he subjective intent of the 

prosecutor is the dispositive issue.” Butler v. State, 724 N.E.2d 600, 603 (Ind. 

2000) (citing Wilson v. State, 697 N.E.2d 466, 472 (Ind. 1998)). Although a trial 

court’s determination of prosecutorial intent is not conclusive for purposes of 

our review, we do regard its determination as “very persuasive.” Id. at 603–04 

(quoting Wilson, 697 N.E.2d at 473).2 That is, the issue of the prosecutor’s 

intent “is a factual determination that we review under a clearly erroneous 

standard.” Id. at 604. Because the clearly erroneous standard is a review for the 

sufficiency of the evidence, we neither reweigh the evidence nor determine the 

credibility of witnesses. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). Instead, 

we consider only the evidence that supports the judgment and the reasonable 

inferences to be drawn from that evidence. Id. 

[16] The trial court here specifically found that, by failing to disclose Troutman’s 

role as a police source, the prosecuting attorney did not intend to cause a 

mistrial. Considering only the evidence supporting the trial court’s factual 

determination, we must agree. The record reveals that, for whatever reason, the 

State did not disclose to the defense that Troutman was the known source of the 

information that led to the search of Johnson’s home. When the defense 

2 The Supreme Court in Kennedy treated the state trial court’s determination as dispositive. Kennedy, 456 U.S. 

at 679). However, our supreme court in Wilson held that although the trial court’s determination of intent was

not conclusive, it was “very persuasive.” 697 N.E.2d at 473; accord Butler, 724 N.E.2d at 604. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019 Page 12 of 18

deposed Troutman, he claimed to have bought cocaine from West and to have 

purchased pills from Johnson. He denied, however, having purchased cocaine 

from Johnson. When defense counsel asked Troutman, “as it pertains to 

cocaine, did you and [Johnson] have any interaction at all?” Johnson replied, 

“No.” Appellants’ App. Vol. 4, p. 67. The Defendants now claim that this 

answer was false, thereby constituting perjury, and that the prosecution 

committed misconduct by not correcting this response during the deposition or 

at any time prior to trial. We are unable to agree. 

[17] Troutman was asked if he had any “interaction” with Johnson pertaining to 

cocaine. The fact that Troutman told the police that he saw a “brick” of cocaine 

at Johnson’s house does not mean that he had an “interaction” with Johnson 

vis-à-vis the cocaine. Troutman could very well have bought pills from Johnson 

and have seen cocaine at Johnson’s home without ever having purchased 

cocaine or otherwise “interacted” with Johnson regarding the cocaine. Thus, 

the Defendants’ claims that the prosecutor violated various duties and ethical 

obligations to correct perjured testimony fall flat, as Troutman’s deposition 

testimony was not necessarily false. 

[18] Furthermore, the lead prosecuting attorney admitted to the trial court that the 

State had failed to disclose Troutman’s role to the defense but stated that he 

believed he had done so and that his failure to do so was inadvertent. Pointing 

to the complexity of the case and the large amount of information disclosed 

during the discovery process, the prosecuting attorney claimed that this 
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oversight was unintentional. The trial court was well within its discretion to 

credit the prosecuting attorney’s account.

[19] But more importantly, as noted by the trial court, there is no indication that the 

prosecution withheld this evidence, or belatedly disclosed it to the defense, with 

the subjective intent of causing a mistrial. To the contrary, the State argued 

strongly against the remedy of a mistrial. And, as noted by the trial court when 

denying the Defendants’ motions to dismiss, the trial was not going poorly for 

the State, and Guajardo had even opened the door to damaging evidence of his 

prior history with cocaine. Thus, there was sufficient evidence supporting the 

trial court’s determination that the prosecution did not intend to cause a 

mistrial.

[20] The Defendants correctly note that, in prior cases where our courts have

affirmed a trial court’s denial of a motion to dismiss following a mistrial, the 

cause of the mistrial was due to the behavior of a witness for the prosecution, 

not the behavior of the prosecuting attorneys themselves. See, e.g., Wilson, 697 

N.E.2d at 472–73 (affirming trial court’s denial of defendant’s motion to 

dismiss following a mistrial caused by State’s witness referring to defendant’s 

request for an attorney where the witness’s problematic testimony was not 

directly responsive to the prosecutor’s questions and where prosecutor’s 

questions did not appear to be deliberately calculated to create the need for a 

mistrial); Willoughby, 660 N.E.2d at 575–76 (holding that trial court did not err 

in permitting retrial of defendant after mistrial caused by a police officer

improperly referring to a polygraph examination where there was no evidence 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-414 | November 27, 2019 Page 14 of 18

that the prosecutor intended to cause the mistrial or that the officer knew his 

comments would likely cause a mistrial); Harbert v. State, 51 N.E.3d 267, 274–

75 (Ind. Ct. App. 2016) (affirming trial court’s denial of defendant’s request to 

dismiss following a mistrial caused by the State’s witness referring to prior 

arrest of co-defendant where there was no evidence that the prosecutor intended 

to cause a mistrial or that the witness knew the comments would cause a 

mistrial), trans. denied. 

[21] The Defendants attempt to distinguish the present case based on who caused 

the need for the mistrial. They argue that the fault should be placed on the State 

because the need for the mistrial was caused by the prosecuting attorney’s 

failure to disclose Troutman’s identity as the known source that led to the 

search of Johnson’s home, not simply a State’s witness. But this is not the 

relevant test. That is, the question is not which party is at fault for causing the 

mistrial, the question is whether the State acted with the subjective intent to 

cause a mistrial. Here, there is no evidence to support such a finding, much less 

evidence that would suggest that the trial court’s contrary finding was clearly 

erroneous. 

[22] We were confronted with a similar situation in Green v. State, 875 N.E.2d 473 

(Ind. Ct. App. 2007), trans. denied. In that case, a police detective discovered 

during the course of the defendant’s trial that she had relevant telephone 

records in her possession. Id. at 476. These records, however, were not properly 

certified, nor were they provided to the defense during discovery. Id. When the 

prosecuting attorney was made aware of this situation, he gave a copy of the 
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phone records to the defense counsel and agreed that the records could not be 

admitted at trial. Id. The trial court, unaware of the nature of the phone records, 

permitted a juror to ask the detective a question regarding the phone records. Id. 

When the trial court was later made aware of the circumstances surrounding 

the phone records, it declared a mistrial. Id. Prior to the retrial, the defendant 

moved to dismiss, arguing that his retrial was barred by double jeopardy. Id. 

The trial court denied the motion, and the second trial resulted in the 

defendant’s conviction. Id. 

[23] On appeal, Green contended that the trial court erred by denying his motion to 

dismiss. We rejected this contention, noting that although the trial court found 

that the mistrial was “the responsibility of the State,” this was not inconsistent 

with the finding that the prosecution did not intend to cause a mistrial. Id. at 

477. We also noted that the prosecutor did not intentionally withhold the phone 

records. Id. Further, at the hearing on the motion to dismiss, the prosecuting 

attorney stated that the first trial had been going well for the State and that he 

did not want a mistrial. Id. Given these facts, we held that the trial court’s 

decision to deny the motion to dismiss was not clearly erroneous. Id. 

[24] Although the facts of the present case are not wholly analogous to those in 

Green, in both cases, the State’s inadvertent mistake caused the mistrial. And in 

both cases, the trial court found that the prosecutors did not intend to cause a 

mistrial. Indeed, here, as in Green, the prosecutor believed the State’s case to be 

going well and did not desire a mistrial. As in Green, we are in no position to 
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second-guess the trial court’s decision on the question of the prosecutor’s 

subjective intent. 

[25] Both the Defendants and the State spend much of their briefs on the issue of 

whether, under the Indiana Constitution, we should adopt a stricter standard 

for when double jeopardy bars a retrial following a mistrial that was the result 

of the actions of the prosecution. Noting that our supreme court has adopted a 

stricter test for determining whether two or more convictions constitute double 

jeopardy under the Indiana Constitution, see Richardson v. State, 717 N.E.2d 32 

(Ind. 1999), the Defendants argue that we should adopt a correspondingly 

stricter test for determining whether retrial is permissible following a mistrial 

caused by the State. 

[26] In support of their argument, the Defendants note that several commenters 

have criticized the more lenient federal standard announced by the United 

States Supreme Court in Oregon v. Kennedy, 456 U.S. 667 (1982). See Appellants’

Br. at 23.

3 The Defendants also note that several other state courts have given 

defendants more protections following mistrials caused by the prosecution 

based upon the double jeopardy clauses found in their state constitutions.4

3 In their Appellants’ Brief, the Defendants quote a substantial portion of what they claim to be the opinion 

of this court in Harbert. As noted by the State, however, the language quoted by the Defendants is not from 

this court’s opinion. Instead, it appears this quote was taken from a brief filed in the Washington Supreme 

Court in a case involving a similar issue. The Defendants do not deny this claim in their reply brief. We 

caution counsel for the Defendants to be more careful when attributing quotations to this court. 

4 See Thomas v. Eighth Judicial Dist. Court in & for Cty. of Clark, 402 P.3d 619, 626 (Nev. 2017); People v. Batts, 68 

P.3d 357, 380–81 (Cal. 2003); State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999); State v. Breit, 930 P.2d 792, 

803 (N.M. 1996); Commonwealth. v. Smith, 615 A.2d 321, 325 (Pa. 1992); State v. White, 354 S.E.2d 324, 329 

(N.C. Ct. App. 1987); Pool v. Superior Court In & For Pima Cty., 677 P.2d 261, 271–72 (Ariz. 1984); State v. 
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[27] This court has been asked to adopt a stricter test before, and we have declined

to do so. See Harbert, 51 N.E.3d at 275 (declining to adopt the stricter standard 

adopted by the Oregon Supreme Court in Kennedy); Etter, 56 N.E.3d at 56 n.1 

(declining to adopt a stricter standard based on the Indiana Constitution and 

noting that our courts have not undertaken a separate analysis under our state 

constitution when addressing the issue of double jeopardy following a retrial 

caused by the State’s conduct); Calvert v. State, 14 N.E.3d 818, 823 (Ind. Ct. 

App. 2014) (declining to adopt Oregon’s stricter test in determining whether 

prosecutorial misconduct barred retrial following reversal of defendant’s 

conviction on appeal); see also Willoughby, 660 at 575–76; Green, 875 N.E.2d at

476–77 (both addressing defendant’s claims that the double jeopardy clause of 

the Indiana Constitution barred retrial following a mistrial using the Oregon v. 

Kennedy standard). We once again decline to depart from our current test.

5

Conclusion

[28] The trial court did not clearly err in determining that the prosecuting attorney 

did not subjectively intend to cause a mistrial or intend to goad the Defendants 

into requesting a mistrial. The Defendants’ retrial therefore does not constitute 

Kennedy, 666 P.2d 1316, 1326 (Ore. 1983) (all interpreting their respective state constitutional prohibitions 

against double jeopardy to provide more protection for defendants following a mistrial caused by the 

prosecution). The Texas Court of Criminal Appeals also adopted a stricter rule in Bauder v. State, 921 S.W.2d 

696, 699 (Tex. Crim. App. 1996), but this decision was later overruled in Ex parte Lewis, 219 S.W.3d 335, 371 

(Tex. Crim. App. 2007), in which the court abandoned the stricter rule and adopted the federal rule 

announced in Oregon v. Kennedy. 

5 If such an important change in Indiana constitutional law is to be made, we believe it should be made by 

the Indiana Supreme Court. 
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double jeopardy. Accordingly, we affirm the order of the trial court denying the 

Defendants’ motions to dismiss. 

[29] Affirmed. 

Robb, J., and Pyle, J., concur.