This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).

UNPUBLISHED OPINION

KLAPHAKE, Judge.

Appellant Robert Anthony Handt was charged with first-and second-degree assault and drive-by shooting. During opening statements, the prosecutor alluded to appellant's previous contacts with police. The district court granted appellant's motion for a mistrial. Appellant moved to bar retrial on grounds of double jeopardy. The district court denied this motion, stating that it could not find that the prosecutor specifically intended to provoke a mistrial and opining that specific intent would be impossible to prove.

Because it is not clear whether the district court considered circumstantial evidence of intent, we reverse and remand for further proceedings.

DECISION

This court reviews issues of double jeopardy de novo. State v. Large, 607 N.W.2d 774, 778 (Minn. 2000). The district court's findings concerning whether double jeopardy bars retrial are reviewed for clear error. State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985).

The Fifth Amendment of the United States Constitution states: "No person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. The Minnesota Constitution provides that "no person shall be put twice in jeopardy of punishment for the same offense." Minn. Const. art. I, § 7. If a criminal trial is terminated at a defendant's request after jeopardy has attached, retrial is not barred unless the mistrial resulted from prosecutorial misconduct that was intended to provoke the mistrial request. Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089 (1982); Fuller, 374 N.W.2d at 726; State v. Barnes, 618 N.W.2d 805, 814 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001); State v. Olson, 609 N.W.2d 293, 299 (Minn. App. 2000), review denied (Minn. July 25, 2000).

Here, the district court was forceful in its description of the prosecutorial misconduct, finding that the experienced prosecutor acted with "knowing misconduct coupled with indifference toward the probable mistrial," "gross negligence," and in "bad faith." The court suggested that the prosecutor was "[attempting] to win the case unfairly . . . by putting into the jury's mind evidence which the prosecutor knew or should have known he could not get into evidence under the rules of evidence for many reasons." The district court nevertheless opined that the Kennedy standard is

impossible to prove, unless, of course, . . . a prosecutor would be willing to admit that they did it on purpose, that is that they tried to get the defense to request a mistrial, hard to imagine a situation in which . . . the prosecutor would make that admission.

These statements suggest that the district court did not understand or did not apply the appropriate standard for determining intent.

Issues of intent are routinely dealt with at the trial level. As the fact finder, a court must infer "the existence or nonexistence of intent from objective facts and circumstances [which] is a familiar process in our criminal justice system." Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089. An admission of intent by an actor is not required and is rarely made.

In Fuller, the district court found that the prosecutor had not willfully or intentionally elicited the inadmissible evidence that led to the mistrial. The district court concluded that, at most, the prosecutor was negligent. Fuller, 374 N.W.2d at 726. Here, the district court found that the prosecutor was attempting to skew the jury's perception by alluding to evidence that had specifically been ruled inadmissible, was acting in bad faith, and was grossly negligent. The court further stated that it was "inclined to agree with the defense's assertion that the prosecution may have been somewhat concerned about what might have been a likely defense-oriented jury." Nevertheless, the court concluded: "I don't think that I can say that he intentionally intended to goad the defense into requesting a mistrial." From these statements, we cannot ascertain whether the court considered any circumstantial evidence of intent or whether the court simply dismissed any consideration of intent because there was no direct admission of intent by the prosecutor.

We therefore reverse and remand to the district court to consider any direct or circumstantial evidence of the prosecutor's intent, and to make further findings regarding that intent.

Reversed and remanded.