Man convicted in second trial after mistrial faced double jeopardy, split COA rules in reversal

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A man convicted and sentenced for sexual misconduct with a minor following a mistrial faced double jeopardy in the subsequent trial, a split Court of Appeals of Indiana has ruled in reversing a lower court’s decision.

Matthew Englehardt was charged with one count of Level 4 sexual misconduct with a minor and three counts of Level 5 sexual misconduct with a minor after his daughter accused him of touching her inappropriately and forcing her to touch him inappropriately.

Before trial in the Wells Circuit Court, the state filed a motion in limine seeking to prohibit Englehardt from presenting any evidence regarding “the character for truthfulness or untruthfulness of any witness or presenting any extrinsic evidence to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness[.]”

The trial court granted the motion.

Before Englehardt called a witness, the court held a hearing regarding the state’s motion and allowed him to present the testimony outside the presence of the jury as an offer of proof.

The witness testified the child “feeds off of negative attention” and “wants drama.”

The court ruled the testimony was not admissible but determined the witness could testify regarding her observations of the girl around the dates in question.

In front of the jury, the witness testified she had worked for the Indiana Department of Child Services for about nine years and is “pretty familiar” with children. She said she had a relationship with Englehardt from 2010 to 2014, during which time they had a child.

The witness said she helped raise the children.

Englehardt asked the witness if she ever helped take care of the children with “things like baths.”

The witness said she “usually did all the baths” so that “nothing can ever come out that anything has happened, just because I’ve learned from my history of my job.”

She continued: “Um — there’s also just some concerns about M.V.1’s behavior that — I — we just wanted to be more cautious —.”

The state objected to the testimony on the ground that it violated the motion in limine and moved for a mistrial.

The court granted the motion, finding in part that the jury may put too much emphasis on the witness having worked for DCS.

A new trial began in May 2022, and a jury found Englehardt guilty as charged. He was sentenced to 10 years and ordered to register as a sex offender for life.

On appeal, Englehardt argued there was no manifest necessity for the court to declare a mistrial and that his subsequent trial subjected him to procedural double jeopardy.

Even if the testimony attacked the girl’s character and credibility, Englehardt argued the proper course of action would have been to strike the testimony and give a limiting instruction to the jury.

A majority of the Court of Appeals panel agreed.

At trial, the judge asked counsel if a limiting instruction and jury admonishment would work following the testimony, but the state said the testimony was “not just a simple violation.”

“We agree with Englehardt that that testimony is ‘vague’ and does not imply that M.V.1 is dishonest or would falsely accuse her father of inappropriate actions,” the opinion says. “Rather, the implication from that testimony is that she handled bathing the children because she was familiar with children as a result of her job with DCS.”

The Court of Appeals said there was nothing egregious about the testimony, “let alone anything so egregious as to warrant a finding of manifest necessity.”

Even if the testimony did attack the girl’s credibility, the opinion says Indiana Evidence Rule 608(a) provides that a “witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.”

“To the extent it violated the motion in limine, we see no reason why an admonishment would not have been adequate to cure any problem with Johnson’s brief testimony,” the opinion says. “And a mistrial is only warranted when no other curative action can be expected to remedy the situation.”

Judge L. Mark Bailey wrote the opinion. Judge Terry Crone concurred with a separate opinion, and Judge Dana Kenworthy dissented with a separate opinion.

The case is Matthew D. Englehardt v. State of Indiana, 22A-CR-1760.

In his concurring opinion, Crone wrote the only matter of importance is the witness statement itself.

“By definition, admissible evidence cannot create a manifest necessity for a mistrial,” Crone wrote.

To conclude otherwise, he wrote, would “gut the constitutional protection against double jeopardy.”

In her dissenting opinion, Kenworthy said she would affirm the trial court’s decision.

“A criminal defendant ought not be rewarded for violating a trial court’s orders,” she wrote.

Kenworthy referenced “several relevant facts” beyond the witness testimony, including giving the parties an opportunity to be heard regarding the admissibility of defense testimony about the child’s character.

Kenworthy also wrote that the U.S. Supreme Court has noted there is a “spectrum” of trial problems that may warrant a mistrial, referencing Arizona v. Washington, 434 U.S. 497, 510 (1978).

Based on the facts and trial court’s assessment of the defense’s culpability, Kenworthy wrote “this case of defense misconduct should fall on the ‘special respect’ end of the spectrum.”

The result also “undermines the rationale behind double jeopardy,” she wrote.

“Had the defense followed the trial court’s order on motion in limine and the jury trial concluded in a guilty verdict, Englehardt could have appealed the exclusion of character evidence,” Kenworthy wrote. “The remedy for error in that scenario would be retrial. Instead, bad behavior by the defense here nets the ultimate reward—acquittal.”