A former high school Junior ROTC instructor who is facing sexual misconduct allegations will appeal a judge's decision to refuse to toss out the case.

Sgt. Maj. Kevin Johnson, 51, of Portersville is accused of sexually assaulting two male students in the Junior ROTC program in the Seneca Valley School District between spring 2005 and January 2008.

A trial that began in August ended minutes into testimony from the first witness, Jackson Township Police Chief Len Keller.

Butler County Judge Timothy McCune declared a mistrial after Keller testified that the defendant had declined to take a polygraph test.

During a subsequent court hearing, Keller testified that he knew polygraph results are inadmissible. But he believed that he could tell the jury he asked the defendant to take the test.

Johnson's defense attorney, David Shrager of Pittsburgh, later argued to McCune that prosecutors should be barred from holding another trial based on double jeopardy.

The judge refused the double jeopardy request and put the case on track for a new trial, beginning later this month.

Shrager on Monday filed a notice at the Butler County Clerk of Courts Office that Johnson's defense plans to appeal McCune's decision to the state's Superior Court.

Shrager did not return a telephone message seeking comment.