State v. Dodge

• Decision Date: 14 September 2022
• Docket Number: A174232
• Citation: 321 Or.App. 775
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. DARRON DUANE DODGE, Defendant-Appellant.
• Court: Oregon Court of Appeals

321 Or.App. 775

STATE OF OREGON, Plaintiff-Respondent, v. DARRON DUANE DODGE, Defendant-Appellant.

A174232

Court of Appeals of Oregon

September 14, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted August 17, 2022.

Clackamas County Circuit Court CR1301852 Susie L. Norby Judge

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Ingrid MacFarlane, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General fled the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

POWERS, J.

In 2015, a jury found defendant guilty of one count of unlawful sexual penetration in the second degree, ORS 163.408, and five counts of sexual abuse in the first degree, ORS 163.427 for sexually abusing his niece and acquitted him on 40 other counts. Defendant appealed, and we reversed and remanded on a suppression issue. State v. Dodge, 297 Or.App. 30, 441 P.3d 599, rev den, 365 Or. 533 (2019). Before the second trial, defendant moved to dismiss the indictment on double jeopardy grounds. He argued that the trial court should have dismissed the indictment because it presented a risk of reprosecution for crimes of which he had already been acquitted in violation of the protections in the state and federal constitutions against successive prosecutions. The trial court denied his motion, the jury found defendant guilty on all six counts, and defendant initiated this timely appeal.

On appeal, defendant argues that the doctrine of issue preclusion prevented the state from retrying him and therefore the trial court should have granted his motion to dismiss. The state remonstrates that preservation principles preclude review and that, in any event, the trial court correctly denied defendant's motion to dismiss. Defendant did not file a reply brief responding to the state's preservation argument, nor did he argue in his opening brief that the trial court committed plain error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 380-81, 823 P.2d 956 (1991) (explaining that an issue not preserved in the trial court generally will not be considered on appeal, unless that error qualifies for plain-error review). After reviewing the record and the arguments advanced on appeal, we conclude that defendant raises a new theory for why the trial court should have dismissed the indictment on double jeopardy grounds.

To preserve an argument before the trial court, "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v....