State v. Dodge

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 dou- ble jeopardy issue,” which “presents an issue of first impres- sion” 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 con- duct[,] and the defendant is acquitted of some counts and convicted of others.” Id. at 158, 180-81. Having considered the parties’ supplemental brief- ing in light of the Supreme Court’s framing of our task on remand, we conclude that defendant has established a for- mer 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 con- duct 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 indict- ment 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 sim- ply 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 ele- ment 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 second- degree 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 penetra- tion (31-33); five counts of first-degree sexual abuse (gen- ital area) (Counts 37-41); five counts of first-degree sex- ual 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 con- nect any of the counts to any specific incident of conduct in its opening statement or closing argument. The com- plainant 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 identi- fied 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 convict- ing him for incidents of which he had already been acquit- ted. The trial court denied defendant’s motion. At the sec- ond 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 the- ory 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 “defen- dant’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 prob- lem that was created as a result of those facts,” “invoked the same constitutional provisions” as “the source of his argu- ment,” 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 indict- ment to any specific incident of conduct.” Id. at 186 (footnote omitted). ANALYSIS We begin by summarizing relevant double jeop- ardy 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 repros- ecution 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 con- victed 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 pre- clusion). 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 defen- dant 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 excep- tion 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 convic- tion. 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 evi- denced 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 cir- cumstances 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 jeop- ardy 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 acquit- ted.” 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 acquit- ted 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 con- sistently 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 speci- ficity in the record regarding the first jury’s verdict is suffi- cient 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 con- victed for incidents of conduct that he was previously acquit- ted 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 crim- inal 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 pub- lic 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, phys- ical, 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 cita- tions omitted.)); Price v. Georgia, 398 US 323, 326, 90 S Ct 1757, 26 L Ed 2d 300 (1970) (“The ‘twice put in jeopardy’ lan- guage 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 pros- ecutions for the same offense[.]’ ” (Quoting State v. Kennedy, 295 Or 260, 273, 666 P2d 1316 (1983).)). Under the undisputed factual and procedural cir- cumstances 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 acquit- ted 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 acquit- ted. Price, 398 US at 326. The “risk of successive prosecu- tions 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 argu- ment that “defendant had the burden of establishing that the retrial would constitute a constitutional jeopardy viola- tion, 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 jeop- ardy 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 deter- mined 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 acquit- tal 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 per- suasion 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] defen- dant 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 purchas- ing 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 necessar- ily 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 estab- lish 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 prosecu- tion, 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 cre- ated 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 non- frivolous 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, confu- sion, and procedural disadvantage attributable to the pros- ecutor’s tactical decisions.”); State v. Heaven, 127 Wash App 156, 164, 110 P3d 835 (2005) (“The [s]tate is seeking to sub- mit 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 nec- essarily 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 prosecu- tion 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 identi- cally-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 unfet- tered 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 burden- shifting framework “when a defendant is being retried on a conspiracy charge for which [the] defendant maintains [they] ha[ve] already been convicted or acquit- ted.” 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 partic- ular 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 instruc- tion. 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 gener- ally 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 concur- rence 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 credibil- ity 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 inher- ent 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 estab- lished 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 cir- cumstances, 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.