No. 972 October 14, 2026 621
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DARRON DUANE DODGE,
Defendant-Appellant.
Clackamas County Circuit Court
CR1301852; A174232
On remand from the Oregon Supreme Court, State v.
Dodge, 373 Or 156, 158, 563 P3d 229 (2025).
Susie L. Norby, Judge.
Submitted on remand March 10, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the opening brief
for appellant. On the supplemental brief were Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, and
Stacy M. Du Clos, Deputy Public Defender, Oregon Public
Defense Commission.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Doug M. Petrina, Assistant
Attorney General, filed the answering brief for respondent.
On the supplemental brief were Dan Rayfield, Attorney
General, Benjamin Gutman, Solicitor General, and Doug M.
Petrina, Assistant Attorney General
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Reversed and remanded with instructions to enter a
judgment of dismissal with prejudice.
622 State v. Dodge
Cite as 353 Or App 621 (2026) 623
ORTEGA, P. J.
This criminal case, on remand from the Supreme
Court, “involves two trials and defendant’s claim that the
second trial violated his state and federal constitutional
rights against double jeopardy.” State v. Dodge, 373 Or 156,
158, 563 P3d 339 (2025) (Dodge III). That court reversed our
decision that defendant had failed to preserve his claim of
error and remanded for us “to address the merits of the double jeopardy issue,” which “presents an issue of first impression” regarding “how the double jeopardy provisions apply
when the state charges a defendant with identically worded
counts, fails to link the counts to specific instances of conduct[,] and the defendant is acquitted of some counts and
convicted of others.” Id. at 158, 180-81.
Having considered the parties’ supplemental briefing in light of the Supreme Court’s framing of our task on
remand, we conclude that defendant has established a former jeopardy violation under Article I, section 12, of the
Oregon Constitution. Specifically, because it is impossible
to tell on this record which incidents of conduct were those
on which the first jury acquitted defendant and which were
those on which it convicted him, we conclude that defendant
has established a risk that he was tried and convicted for the “same offense” on retrial and that the state has not shown
that it was retrying defendant on only those incidents of conduct for which he was previously convicted. Accordingly, we
reverse and remand with instructions to enter a judgment
of dismissal with prejudice.
BACKGROUND
We draw the relevant procedural facts from Dodge
III. See 373 Or at 160-72. A grand jury returned an indictment charging defendant with 46 sex crimes, all alleged
to have been committed against his adoptive niece during
an eight-year period, “on or between November 20, 1999,
to November 20, 2007.” Each count in the indictment simply alleged that the crime was committed by tracking the
language of the applicable statute defining the offense,
except that those counts with “sexual contact” as an element alleged the form of contact. The indictment’s generic
624 State v. Dodge
wording resulted in groups of identical charges: five counts
of second-degree rape (Counts 1-5); five counts of seconddegree sodomy (mouth to vagina) (Counts 11-15); five counts
of second-degree sodomy (mouth to penis) (Counts 21-25);
three counts of second-degree unlawful sexual penetration (31-33); five counts of first-degree sexual abuse (genital area) (Counts 37-41); five counts of first-degree sexual abuse (breasts) (Counts 42-46); and eighteen counts of
second-degree sexual abuse, which corresponded with the
rape, sodomy, and unlawful sexual penetration counts that
each respective group followed in the indictment (Counts
6-10 (rape), Counts 16-20 (sodomy, mouth to vagina), Counts
26-30 (sodomy, mouth to penis), and Counts 34-36 (unlawful
sexual penetration)). 0F1
At the first trial, the state made no effort to connect any of the counts to any specific incident of conduct
in its opening statement or closing argument. The complainant testified about the number of times each of the
charged crimes had occurred and recounted several specific
incidents of abuse and their factual circumstances, such
as the location. The jury instructions did not identify the
factual circumstances on which each count was based, and
they did not require the jury to agree on the specific factual occurrence underlying each count. The verdict form identified each count only by its number, crime name, and, where
applicable, form of sexual contact. The jury found defendant
not guilty of 40 counts, including all of the rape and sodomy
counts and their corresponding second-degree sexual abuse
counts (Counts 1-30), and guilty of six counts: one of the
unlawful sexual penetration counts and its corresponding
second-degree sexual abuse counts (Counts 31 and 34), and
two counts of each form of first-degree sexual abuse (Counts
37 and 38 (genital area), Counts 42 and 43 (breasts)).
On defendant’s first appeal, we concluded that
the trial court had committed reversible error in denying
1
While each count in the indictment also alleged that the crime it charged was committed during a “criminal episode separate, apart and distinct from that alleged in any other count,” the prosecutor proceeded on the theory that the second-degree sexual abuse counts were lesser-included offenses of, and that each corresponded to, respective rape, sodomy, and unlawful sexual penetration counts.
Cite as 353 Or App 621 (2026) 625
defendant’s motion to suppress evidence, and we reversed
and remanded the case to the trial court. State v. Dodge, 297
Or App 30, 32, 46, 441 P3d 599, rev den, 365 Or 533 (2019)
(Dodge I).
On remand, defendant filed a motion to dismiss the
indictment, contending that retrying him on the six counts
of conviction would violate his constitutional rights against
double jeopardy. Defendant argued that, because of the lack
of specificity in both the indictment and the first trial, it was impossible to tell what incident of conduct each count in the
indictment was based on, and, therefore, retrying him on
the six counts of conviction would risk trying and convicting him for incidents of which he had already been acquitted. The trial court denied defendant’s motion. At the second trial, the jury convicted defendant of the six remanded
counts.
On defendant’s appeal after retrial, we concluded
that he had “not pursued on appeal the double jeopardy theory that he raised before the trial court” in his motion to
dismiss the indictment because “his argument ha[d] shifted
to rely on principles of issue preclusion.” State v. Dodge, 321 Or App 775, 776-77 (2022) (nonprecedential memorandum
opinion) (Dodge II). We therefore concluded that “defendant’s unpreserved appellate argument provide[d] no basis
for reversing the trial court.” Id. at 777.
The Supreme Court allowed review and reversed.
The court concluded that, since the case was remanded after
the first appeal, defendant “has raised the same issue” and
“the same argument,” “identified the same facts about how
the case was charged and tried,” “described the same problem that was created as a result of those facts,” “invoked the same constitutional provisions” as “the source of his argument,” and “made the same argument on appeal.” Dodge III,
373 Or at 184-85.
After concluding that we “erred in resolving this
case on preservation grounds,” the court declined to address
the merits of the double jeopardy issue. Instead, the court
acknowledged that its “discussion of how the issue in this
case differs from the issues in prior cases”—in that it “is
626 State v. Dodge
not easily labeled” and “differs from the ‘former acquittal,’
‘continuing prosecution,’ and ‘issue preclusion’ cases decided by [the Oregon Supreme Court] and the [United States]
Supreme Court”—”may enable the parties to address the
novel and important issues in this case more directly.” Id. at 185-86. The court directed the parties on remand to “focus
on the principles underlying the double jeopardy provisions
and address how those principles apply to the scenario here,
where the state did not link any of the counts in the indictment to any specific incident of conduct.” Id. at 186 (footnote omitted).
ANALYSIS
We begin by summarizing relevant double jeopardy principles set forth in Dodge III. Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the
United States Constitution “provide, in somewhat different
terms, that a person has a right not to be put in jeopardy
twice for the same offense.” Dodge III, 373 Or at 173 (internal quotation marks and footnote omitted). Both constitutional
1F2
provisions “limit the state’s ability to prosecute a defendant multiple times based on the same ‘incident of conduct,’ that
is, conduct—an act and accompanying mental state—that
occurred at a particular time and location.” Id. at 174. The
purposes of such a limit are to “prevent the harassment of
defendants” and “to preserve the finality of judgments.” Id.
at 174-75.
Constitutional double jeopardy provisions apply in
three scenarios relevant to this case: (1) to “prohibit reprosecution for offenses that a defendant has been acquitted of,
even within a single case” (former acquittal); (2) to “prohibit reprosecution for offenses that a defendant has been convicted of” (successive prosecution), absent some exception,
such as “when a defendant appeals or otherwise challenges
[their] convictions and secures a reversal and remand or
other relief” (continuing prosecution); and (3) as to the Fifth
2
Article I, section 12, provides, “No person shall be put in jeopardy twice for the same offence [sic][.]” The Fifth Amendment provides, “No person shall * * * be subject for the same offence [sic] to be twice put in jeopardy of life or limb[.]” The Fifth Amendment’s double jeopardy provision applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 US 784, 794, 89 S Ct 2056, 23 L Ed 2d 707 (1969).
Cite as 353 Or App 621 (2026) 627
Amendment, to “preclude[ ] the state from relitigating an
issue that was decided against it in an earlier trial, even if the earlier trial was not on an identical charge” (issue preclusion). Id. at 175-80 (emphases in original).
In a former acquittal scenario, when a jury or judge
has determined that the state has failed to present sufficient evidence to support a conviction for an offense, the defendant cannot be reprosecuted for the offense within a single
case or in a subsequent case, even if the acquittal was based
on an error. Id. at 176-77. “An acquittal is ‘inviolate’ ” and “[i]ts finality is ‘unassailable.’ ” Id. at 176 (quoting McElrath v. Georgia, 601 US 87, 94, 144 S Ct 651, 217 L Ed 2d 419
(2024), and Yeager v. United States, 557 US 110, 123, 129 S
Ct 2360, 174 L Ed 2d 78 (2009)).
A continuing prosecution scenario is an exception to the general rule against successive prosecution:
if a defendant has been convicted of an offense, the state
cannot reprosecute the defendant for the same offense, but
if a defendant appeals their conviction for an offense and
secures a reversal, the state may reprosecute the defendant
for that offense unless the reversal is based on the ground
that there was insufficient evidence to support the conviction. Id. at 177-78.
Finally, in an issue preclusion scenario, when a
defendant has been prosecuted for an offense and certain
factual issues were resolved in the defendant’s favor, as evidenced by the factfinder’s verdict, the state is barred from
relitigating those issues, even in connection with a different charge. Id. at 178.
As the Supreme Court observed, the factual circumstances of this case do not neatly fit into any of those
three categories. And neither that court nor the United
2F3
States Supreme Court “has addressed how the double jeopardy provisions apply when the state charges a defendant
3
On review, defendant emphasized the aspects of this case that fit into the former acquittal category, and the state emphasized the aspects that fit into the continuing prosecution category, but the state’s argument was “not responsive to defendant’s argument[ ] that there was a risk that, in the second trial, he would be convicted based on incidents of conduct of which he had already been acquitted.” Dodge III, 373 Or at 180-82.
628 State v. Dodge
with identically worded counts, fails to link the counts to
specific instances of conduct[,] and the defendant is acquitted of some counts and convicted of others.” Id. at 180-81.
With that legal backdrop in mind, we turn to the
parties’ arguments on remand. In his supplemental brief,
defendant argues that the state may not retry counts on a
generic indictment when the defendant establishes a risk
that the retrial will be for incidents of conduct on which he
was previously acquitted, unless the state can demonstrate
that it is in fact retrying only those incidents of conduct the first jury found against the defendant. In defendant’s view,
the first jury’s failure to decide which incidents related to
each count “should not limit defendant’s absolute right to
shield his 40 acquittals,” and “the factual basis for each
count of conviction is a necessary predicate to continuing
prosecution—charged to the state in every prosecution to
sufficiently define for the grand jury, the defendant, the
petite jury, and the court.” Thus, defendant urges us to hold
that, on this record, he has established a risk that his retrial was for the “same offenses” that the first jury acquitted him
of and that “the burden necessarily shifted to the state to
demonstrate that the first jury answered that question consistently with [the state’s] theory on retrial.”
The state responds by first acknowledging that, if
the state had “swapped entire counts with each other for
retrial,” and if “that resulted in the reprosecution of counts of which the defendant has been acquitted,” then “that would
violate constitutional-jeopardy principles.” But the state
argues that “the record does not show that that occurred
here” and that “defendant has the burden of establishing a
jeopardy violation, not merely the risk of one.” In the state’s view, “[b]efore or at his first trial, defendant could have
sought and obtained greater specificity as to the factual
basis for the charges but failed to do so” and “thus failed to prove that he was retried for acquitted counts.”
As we understand the parties’ arguments, there
is no dispute that, because of the lack of specificity in the
indictment and the first trial, it is impossible to discern
which incidents the first jury acquitted him of and which
incidents it convicted him of. Indeed, Dodge III held as
Cite as 353 Or App 621 (2026) 629
much. But the parties disagree whether that lack of specificity in the record regarding the first jury’s verdict is sufficient to establish a double-jeopardy violation, as defendant
contends, or not, as the state contends. That is, to establish a double jeopardy violation, is it sufficient that defendant
has established the risk that the state reprosecuted him on
incidents of conduct that he was previously acquitted of? Or
must defendant show that he was in fact retried and convicted for incidents of conduct that he was previously acquitted of?
We agree with defendant’s argument. It is well
established that constitutional double jeopardy provisions
protect the accused from the risk that they will be convicted
of the same offense on which they have already been tried,
by barring the state from reprosecuting the accused for the
same offense on which they have already been tried. Breed v.
Jones, 421 US 519, 528, 95 S Ct 1779, 44 L Ed 2d 346 (1975)
(“Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution.”); id. at 529 (“[T]he risk to which the term jeopardy refers is that traditionally associated with actions
intended to authorize criminal punishment to vindicate public justice. Because of its purpose and potential consequences, and the nature and resources of the [s]tate, such a proceeding imposes heavy pressures and burdens—psychological, physical, and financial—on a person charged. The purpose of the
Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offence.’ ” (Internal citations omitted.)); Price v. Georgia, 398 US 323, 326, 90 S Ct
1757, 26 L Ed 2d 300 (1970) (“The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.”); United States v. Ball, 163 US 662, 669, 16 S Ct 1192, 41 L Ed 300 (1896)
(“The prohibition is not against being twice punished, but
against being twice put in jeopardy * * *.”); State v. Moore, 361 Or 205, 214, 390 P3d 1010 (2017) (“This court has embraced
a similar view regarding Article I, section 12, [as the United States Supreme Court has interpreted the Fifth Amendment]
by holding that ‘a bar against prosecution must be derived
from the constitutional objective to protect defendant against 630 State v. Dodge
the harassment, embarrassment and risk of successive prosecutions for the same offense[.]’ ” (Quoting State v. Kennedy, 295 Or 260, 273, 666 P2d 1316 (1983).)).
Under the undisputed factual and procedural circumstances of this case, we conclude that defendant has
established such a risk and has therefore established a
prima facie claim that his right against double jeopardy was
violated. Because it is impossible to discern which incidents
of conduct the first jury acquitted defendant of, nothing
precluded the jury on retrial from convicting defendant for
alleged incidents of conduct that he has already been acquitted of. Thus, when the state sought to retry defendant on
the six reversed counts, there was “a potential, i.e., a risk
that [defendant] for a second time [would] be convicted of the ‘same offense’ for which he was initially tried” and acquitted. Price, 398 US at 326. The “risk of successive prosecutions for the same offense” is sufficient to establish a double jeopardy violation and to trigger “a bar against prosecution.” Moore, 361 Or at 214. We therefore reject the state’s argument that “defendant had the burden of establishing that
the retrial would constitute a constitutional jeopardy violation, not merely that the retrial posed a risk of a violation.” The constitutional jeopardy provisions protect against the
risk that a defendant will be convicted of the same offense
on which they have already been tried; the risk of successive
prosecution is the jeopardy violation.
As defendant points out, other state courts have
reached the same conclusion when addressing this issue
under similar factual and procedural circumstances. Dunn
v. Maze, 485 SW 3d 735, 749 (Ky 2016) (“Where the earlier
not-guilty verdicts are based on generic, identically worded
counts both in the indictment and jury instructions, they
must be given effect. Because those acquittals cannot be tied
to any particular alleged crimes, they must necessarily act as acquittals on all the counts brought at that time[.]”); Goforth v. State, 70 So3d 174, 189-90 (Miss 2011) (holding that the
defendant’s “constitutional right to be free from double jeopardy precludes any future prosecution” on the same charges
after successfully reversing the judgment of conviction on
appeal where the indictment charged “multiple, identically
Cite as 353 Or App 621 (2026) 631
worded counts,” “[n]either the indictment nor the charging
instruction differentiated among the five counts,” and the
jury acquitted the defendant of three of the five counts such
that “the basis for the jury’s split verdict cannot be determined without conjecture”); Commonwealth v. Hrycenko,
417 Mass 309, 316-17, 630 NE2d 258 (1994) (“Because of
the uncertainty concerning the bases of the jury’s acquittal and guilty verdicts at the first trial, the defendant was
subjected at retrial to the risk that he would be convicted
of the alleged rapes of which he had been acquitted.”); see
also State v. Alires, 455 P3d 636, 646 n 7, 2019 UT App 206
(2019), cert den, 466 P3d 1076 (2020) (citing Dunn for the
proposition that “where the counts of conviction cannot
be distinguished from the counts on which the defendant
was acquitted, a retrial may be prohibited by the Double
Jeopardy Clause” but expressing “no opinion on the merits
of the double-jeopardy issue, which will not be ripe unless
and until the [s]tate seeks a retrial”).
Seeking a different result, the state argues that
those cases are not persuasive because “it is well settled
under Oregon law that defendants have the burden of persuasion to demonstrate that the offense for which they are
charged is the ‘same offense’ as one for which they already
have been prosecuted.” See, e.g., State v. Berry, 261 Or App
824, 831, 322 P3d 607, rev den, 356 Or 163 (2014) (“[A] defendant seeking to assert a former jeopardy bar to a second
prosecution may have to go beyond the words of the charging
instruments in order to prove that the crimes alleged are
the same.” (Quoting State v. Watson, 193 Or App 757, 761,
91 P3d 765, rev den, 337 Or 476 (2004).)). But this is not a
case where the defendant failed to put forth any evidence
to support his claim, nor a case where the undisputed facts
defeated the defendant’s former jeopardy claim as a matter
of law. See State v. Newlin, 92 Or 597, 599, 182 P 135 (1919)
(rejecting the defendant’s former conviction plea for sale of
intoxicating liquors because, “[w]hile the matter of purchasing the liquor was discussed by the defendant in the presence
of both Smith and Johnson, the sale to each was separate
and complete in itself”); State v. Howe, 27 Or 138, 143-44,
44 P 672 (1895) (rejecting the defendant’s former acquittal
plea because “the two indictments against the defendant in
632 State v. Dodge
this case [for public larceny] were not for the same offense,
prima facie, nor did the proof of one necessarily involve the
proof of the other, nor did an acquittal on the first necessarily show that the defendant could not have been guilty of the
crime charged in the other” where one indictment involved
conversion of $52 of county funds to his own use and the
other involved retaining $8,000 of county funds at the end
of his term); State v. Sly, 4 Or 277, 278-79 (1872) (holding
that violation of a municipal regulation and an “identical”
state criminal code provision are not the “same offense” as a
matter of law); see also State v. Holloway, 57 Or 162, 167, 110 P 397, reh’g den, 110 P 791 (1910) (rejecting the defendant’s
plea of former jeopardy because it was not entered orally on
the record as required by statute); Berry, 261 Or App at 830-31 (holding that the defendant waived his former jeopardy
claim by failing to raise the issue before the second trial).
In our view, defendant has met his burden to establish a prima facie former jeopardy claim on this record
because, given the lack of specificity in the indictment and
the first trial litigation, it is possible that he was being
retried for the “same offenses”—that is, instances of conduct
or specific “act[s] and accompanying mental state[s] that
occurred at a particular time and location.” Dodge III, 373
Or at 174 & n 5. Our disposition in this case is consistent
with Oregon former jeopardy case law.
Indeed, other courts have acknowledged both that
the defendant traditionally bears the burden to establish a
factual basis for a double jeopardy claim and that a defendant is not required to establish certainty under these unique
procedural circumstances. Those courts have accordingly
adopted a burden-shifting framework in this context: Once
the defendant has established the risk of successive prosecution, the burden shifts to the state to prove that it is retrying the defendant only on those incidents of conduct that the jury had convicted the defendant of. See State v. Salter, 425 NJ
Super 504, 519-521, 42 A3d 196 (App Div 2012) (holding that
the defendant “has presented a colorable argument that his
retrial on count four will violate double jeopardy” and “it is up to the [s]tate to establish that prosecuting defendant on
count four would not” where “it is impossible to ascertain of
Cite as 353 Or App 621 (2026) 633
what specific conduct the jury acquitted defendant, and of
what specific conduct it found him guilty”); Brown v. Superior Court, 187 Cal App 4th 1511, 1528, 114 Cal Rptr 804 (2010)
(“[W]e conclude that given the unique circumstances created by the prosecutor’s strategic decisions on how to charge
and try the case and the nature of the charges, the interests
served by the double jeopardy clause * * * necessitate shifting the burden of proof to the prosecutor upon petitioner’s nonfrivolous showing that he faces prosecution for an offense for which he was formerly placed in jeopardy. To do otherwise
would force petitioner to overcome the uncertainty, confusion, and procedural disadvantage attributable to the prosecutor’s tactical decisions.”); State v. Heaven, 127 Wash App
156, 164, 110 P3d 835 (2005) (“The [s]tate is seeking to submit all of the evidence of sexual molestation submitted in the first trial even though consideration of this evidence resulted in two acquittals. This it cannot do. When the [s]tate charges in the manner employed here and does not make an election
or request specific verdict forms for the three counts, it necessarily assumes the risk of a double jeopardy bar.”). 3F4
We also reject the state’s contention that concluding
that defendant has established a risk of successive prosecution on this record somehow weakens the burden of proof in
this context where “no doctrinal justification exists for doing so” because defendant “could have sought and obtained
greater specificity as to the factual basis for the charges
but failed to do so” before his first trial. We agree with the Supreme Judicial Court of Massachusetts that
“it would be unreasonable to impose on an accused on the
eve of trial the responsibility to seek specifications of identically-worded indictments so that, in the unlikely event that
the jury later returns split verdicts on the indictments and,
on appeal, the convictions are reversed and remanded for
retrial, that the [state] may then proceed to retrial unfettered by any concern of the bar of double jeopardy. This
eventuality is more properly regarded as the concern of the
[state], which seeks the indictments before the grand jury.”
4
Several federal Circuit Courts of Appeals have also adopted a burdenshifting framework “when a defendant is being retried on a conspiracy charge for which [the] defendant maintains [they] ha[ve] already been convicted or acquitted.” People v. Smith, 132 Cal App 4th 1537, 1549 & n 11, 34 Cal Rptr 3d 472 (2005) (so observing and collecting cases).
634 State v. Dodge
Hyrcenko, 417 Mass at 317; cf. Heaven, 127 Wash App at
165 (“We recognize the need for prosecutorial discretion in
charging decisions, particularly in cases involving crimes
against children. * * * [T]he State often must take into
account the ability of a child to testify to specific times and places when it decides how to charge a defendant. To avoid
the possibility of future double jeopardy in cases such as
this, the [s]tate can decide after testimony to elect particular incidents it is relying on for consideration by the jury
and it can request the trial court to submit special verdicts
requiring the jury to identify the act or acts upon which it
relies for each verdict.” (Citations omitted.)).
Here, the state sought the indictment before the
grand jury and did not seek greater specificity for any of
the counts. During the first trial, the state made no effort
to link the complainant’s trial testimony to any count, did
not elect the factual occurrences for any count, and did not
request a special verdict form or a concurrence jury instruction. While it is true that defendant did not file a demurrer, it is unlikely one would have been granted. See State v. Hale, 335 Or 612, 621, 75 P3d 448 (2003) (“[W]e now confirm that,
as this court so many times has held, an indictment generally is sufficient if it charges an offense in the words of the statute[.]”) And although it might have benefitted defendant
to seek an election, a special verdict form, or a jury concurrence instruction, it is not incumbent on a defendant to do
so, particularly in a so-called “resident-child-abuser” case
where a reasonable trial strategy—often the best one—is
to deny that any wrongful touching occurred and advance
an all-or-nothing defense. State v. Ashkins, 357 Or 642, 661-62, 357 P3d 490 (2015) (in holding that the refusal to give
the defendant’s requested jury concurrence instruction was
harmless error, reasoning that “only infrequently can an
alibi or identity defense be raised in resident child [abuse]
cases” because the trial usually “centers on a basic credibility issue—the victim testifies to a long series of [abuse] and the defendant denies that any wrongful touching occurred”).
We doubt that the state would pursue such a trial strategy if
it were not to its advantage. But there is a latent risk inherent in pursuing such a course of litigation: a future former
jeopardy violation.
Cite as 353 Or App 621 (2026) 635
We therefore conclude that defendant has established a prima facie double jeopardy claim under Article I,
section 12. And even assuming that Article I, section 12,
supports shifting the burden to the state under these circumstances, the state has not attempted to show that it
retried defendant only on those incidents of conduct that the
first jury convicted defendant of, and we doubt that it could
have made such a showing below. Accordingly, we reverse
the judgment of conviction and remand with instructions to
enter a judgment of dismissal with prejudice.
Reversed and remanded with instructions to enter
a judgment of dismissal with prejudice.