State v. Dodge

                                    775

   This is a nonprecedential memorandum opinion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, affirmed September 14, 2022, petition for review allowed
                       January 19, 2023 (

)
                       See later issue Oregon Reports


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  DARRON DUANE DODGE,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     CR1301852; A174232

   Susie L. Norby, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Affirmed.
776                                           State v. Dodge

        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, 

, 

, rev den, 

 (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., 

, 

 (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. Wyatt, 

,

 (2000). Defendant has not pursued on appeal the
Nonprecedential Memo Op: 

 (2022)            777

double-jeopardy theory that he raised before the trial court;
rather, his argument has shifted to rely on principles of issue
preclusion. Defendant failed to preserve the theory that he
raises on appeal, and we do not understand him to pursue
on appeal the theory that he raised before the trial court.
As we have explained, “[a]lthough there is some degree of
liberality to the preservation requirement, the requirement
is not meant to be a cursory search for some common thread,
however remote, between an issue on appeal and a position
that was advanced at trial.” State v. Blasingame, 

, 

 (2014), rev den, 

 (2015)
(internal quotation marks omitted); see also State v. Stevens,

, 

 (1998) (concluding that the
arguments raised on appeal were not consistent with the
theory of that party’s objections before the trial court and
therefore not preserved for appellate review). Accordingly,
defendant’s unpreserved appellate argument provides no
basis for reversing the trial court.
        Affirmed.