State v. Bravo-Chavez

326                September 10, 2025              No. 803

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Appellant,
                            v.
           JOSE LAHDIEL BRAVO-CHAVEZ,
                Defendant-Respondent.
            Multnomah County Circuit Court
                 23CR05259; A184815

  Cheryl A. Albrecht, Judge.
  Argued and submitted January 28, 2025.
   Doug M. Petrina, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Brett J. Allin, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  TOOKEY, P. J.
  Affirmed.
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         TOOKEY, P. J.
         In this expedited appeal, defendant was charged
with 28 sex crimes. Defendant’s daughter, E, who is now an
adult, disclosed that defendant sexually assaulted her up to
five times per week throughout her childhood from age six
to 17. Before trial, defendant moved for an order requiring
the state to elect the specific acts upon which it would rely
to prove each of the 28 charges. The trial court granted the
motion for pretrial election. The state sought to comply with
the order by electing to prove the “first time,” the “last time,”
“[a] time,” or the “one time” various acts occurred when the
victim was a specified age. At the beginning of trial, and
after considering that election as well as other efforts by
the state to identify the factual occurrences underlying the
charges, the trial court granted defendant’s motion to dismiss 22 of the 28 counts for lack of notice sufficient for defendant to prepare a defense. In this appeal, the state seeks
reversal of the orders granting the motion for pretrial election and dismissing 22 counts.1 Because defendants have a
right to notice of the charges against them sufficient to prepare a defense, we affirm.
   I. FACTUAL AND PROCEDURAL BACKGROUND
         When E was 19 years old, she reported that defendant, her father, had sexually abused her regularly from
when she was six years old until she was 17. In interviews
and before the grand jury, E disclosed details about the first
time the abuse occurred, and she also provided information
about other instances of abuse. She explained that the abuse
was constant and that it occurred up to five times per week.
Much of her testimony consisted of generic descriptions of
her father’s conduct.
         The grand jury indicted defendant on six counts
of first-degree unlawful sexual penetration, ORS 163.411
(Counts 1-6); two counts of second-degree unlawful sexual
penetration, ORS 163.408 (Counts 7, 8); six counts of first-degree sodomy, ORS 163.405 (Counts 9-14); three counts of
second-degree sodomy, ORS 163.395 (Counts 15-17); eight
    1
      Below, the parties agreed that notice was sufficient as to the remaining six
counts (Counts 1, 9, 10, 16, 17, and 18). We offer no opinion on any issue relating
to those remaining counts.
328                                                State v. Bravo-Chavez

counts of first-degree sexual abuse, ORS 163.427 (Counts
18-25); and three counts of second-degree sexual abuse,
ORS 163.425 (Counts 26-28). For each set of crimes, the
indictment alleged one count per year, and the allegations
were framed in the wording of the relevant statutes. Counts
9 and 10 alleged alternative theories of first-degree sodomy
based on an incident when E was 11 and Counts 16 and 17
alleged alternative theories of second-degree sodomy based
on an incident when she was 13.
         Before trial, defendant filed a motion for pretrial
election requesting the state to elect the specific acts it
intended to rely on to prove each count. Defendant argued
that pretrial discovery disclosed “over 1,000 different factual occurrences,” and that defendant was “left with no
way to know what specific factual occurrence corresponds
to each charged count.” Relying on State v. Antoine, 

, 

, rev den, 

 (2015) (Antoine I),
defendant argued that he was entitled to pretrial notice, and
that he “should not be required to speculate as to what the
State will argue at trial.”2
         In response, the state argued that Antoine I was
distinguishable because the indictment in that case listed
“broad and identical date ranges,” but here the indictment
listed “a distinct variety of time ranges and actions putting
the Defendant on notice of the time period the state is alleging the crimes were committed for each act.” The state also
argued that the victim “reported that the assaults happened
weekly, thus an indictment reflecting the repetitive nature
of the abuse, albeit charged in a very conservative fashion—
[one] instance per year—is both consistent with the discovery in this case and sufficiently notifies the Defendant of the
charges against him.”
         Nevertheless, the state indicated that it also made
elections in response to defendant’s motion by specifying
nonoverlapping date ranges for each offense. For Count 1,
    2
      After we affirmed the defendant’s convictions in Antoine I, the defendant
sought post-conviction relief. The post-conviction court granted relief, but we
reversed that decision. Antoine v. Taylor, 

, 

 (2020)
(Antoine II). The Supreme Court allowed review and affirmed our decision.
Antoine v. Taylor, 

, 

 (2021) (Antoine III). We address Antoine
I and the Supreme Court’s decision in more detail later in this opinion.
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the state elected to prove the “first time” defendant sexually penetrated E’s vagina with his finger when she was six
years old. Under Counts 2 through 8, the state elected to
prove “[a] time” defendant did so when E was 7, 8, 9, 10, 11,
12, and 13 years old. The state made similar elections for
the other sets of crimes. Under Count 17, the state intended
to prove the “one time” defendant engaged in anal sexual
intercourse with E when she was 13 years old, and, under
Count 18, the state intended to prove the “first time” defendant caused E to touch his penis when she was six. For
most of the other counts, the state elected to prove “[a] time”
defendant engaged in specified conduct within a one-year
date range.
         In a written order, the trial court granted defendant’s motion for pretrial election. The court stated that
selecting one incident within a time frame did not cure the
problem of lack of notice because “there are more criminal
acts for that time period than were charged in the indictment, allowing the state to introduce multiple acts per count
without defendant knowing which of the acts would be specified and argued to the jury.” The court expressed concern
about “the voluminous other acts evidence that could potentially be admitted.” The court stated that “admission of what
amounts to other acts evidence in the guise of choosing one
event of many to stand in for the rest does not provide sufficient notice for the defendant to prepare a defense.” The trial
court ordered the state “to elect acts that will serve as the
basis for the charges.”
        In response to the court’s order, a few days before
trial was scheduled to commence, the state filed a “Notice of
Subsequent Pretrial Election.” It stated:
   “In this case it is impossible for the State to elect with specificity the date or time of each offense precisely because (1)
   the abuse occurred while the victim was a child (with all
   difficulties of memory incumbent therein), (2) the offenses
   occurred years prior to the victim’s disclosure, and (3) the
   abuse was perpetrated on the victim repetitively to the
   point of habit such that the victim is not able to recall
   details necessary to distinguish each of the occurrences.
   To require the kind of specificity that the Defendant seeks
   would demand more of the victim’s memory than is possible
330                                                 State v. Bravo-Chavez

    in cases like this and would serve to effectively thwart any
    prosecution of cases of repetitive sexual abuse over years. In
    an effort to comply with the Court’s order, the State makes
    the following elections with as much additional specificity
    as can be provided under the circumstances.”
In its “second” election, the state listed each of the counts
and indicated that it would prove the “first time” or the
“last time” the conduct occurred, the “one time” defendant
engaged in anal sexual intercourse, or “[a] time” the conduct occurred when E was a particular age. In its second
election, the state emphasized that it would prove the “first
time” the conduct occurred for 21 of the counts. For Counts
8 and 28, the state elected to rely on the “last time” the conduct occurred; for Counts 12, 14, 15, and 16, the state would
prove “[a] time” the conduct occurred; and, for Count 17, the
state would prove the “one time” it occurred. The state also
pointed out that some of the counts were alternative theories of sodomy relating to the same incident.
        At a hearing at the beginning of trial, the court and
the parties addressed the adequacy of the state’s election.
The state pointed out that the trial court had subsequently
ruled that “other acts” evidence was admissible, so any concern about the improper admission of such evidence was not a
reason for more specificity. The state also argued that defendant did not intend to advance an alibi defense to specific
charges but was instead raising an “all-or-nothing” defense.
         Defendant responded that he did not know if he
had an alibi defense without further specificity, and he
also raised concerns about jury concurrence and a variance
problem at trial.3 Defendant therefore moved to dismiss the
charges under Article I, section 11, arguing that he had
received “inadequate notice of the specific factual occurrences that the state intends to rely on at trial.”
     3
       Jurors must concur on which occurrence constitutes the crime. State v.
Ashkins, 

, 

 (2015). “[A] defendant’s right to jury concurrence arises from Article I, section 11,” of the Oregon Constitution. 

.
A “variance” problem can occur when there is a difference between the indictment and the state’s proof at trial. State v. Samuel, 

, 

 (2017), rev den, 

 (2018). Under Article VII (Amended), section
5(3), defendants have a right to be tried only for the criminal acts as to which the
grand jury handed down the indictment. State v. Long, 

, 370 n 13, 

 (1994), cert den, 

 (1995).
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         The trial court required the parties to “sit down” and
“go through the grand jury” transcript and identify counts
that were supported by more than the victim’s non-specific,
generic testimony. When the hearing resumed, the state
explained that the victim had testified before the grand jury
with specificity about six counts. The state indicated that
Count 1 (unlawful sexual penetration) and Count 18 (sexual abuse) were based on E’s testimony about the first sexual assault and provided additional details specific to those
counts. The state explained that Counts 9 and 10 were alternative theories of sodomy based on the incident when defendant forced E to perform oral sex on him. Similarly, Counts
16 and 17 were alternative theories of sodomy based on the
incident when defendant engaged in anal sexual intercourse
with E. In the end, the state did not connect the remaining
counts to any specific factual detail. Defendant was satisfied with the state’s election as to the six counts for which
the state provided some additional information. However, he
argued that the remaining counts should be dismissed on
the ground of inadequate notice and because there would be
a variance problem at trial.
          The trial court ruled that, even after the state’s
election, defendant had constitutionally inadequate notice
for 22 counts because the state did not connect those counts
to facts contained in the discovery (Counts 2-8, 11-15, and
19-28), and it dismissed those charges. The trial court
acknowledged that “it is very difficult with this type of evidence because to some degree, it [was] incapable of … differentiation,” but the court concluded that without the identification of further specifics, the state had presented the
charges in a way that made them too “amorphous” to defend
against. The trial court entered a written order dismissing
22 counts.
                       II. ANALYSIS
        On appeal, the state argues that the trial court
erred in compelling it to make a pretrial election and in
dismissing 22 counts. The state argues that the trial court
erred because: (1) a demurrer is the exclusive way to challenge a lack of pretrial notice; (2) the fact that discovery
reveals more crimes than charged does not mean there is
332                                          State v. Bravo-Chavez

inadequate notice; and (3) in a “resident child abuser” case,
the state should not be required to make an election until
the end of the state’s case-in-chief. As we explain below, we
are not persuaded that the trial court erred. We begin with
some relevant background principles.
A.    Legal Framework
         Defendants have state and federal constitutional
rights to notice of the charges against them. Under Article I,
section 11, of the Oregon Constitution, defendants have the
right to “demand the nature and the cause of the accusation
against” them. Similarly, under the Sixth Amendment to
the United States Constitution, defendants have the right
“to be informed of the nature and cause of the accusation[.]”
Adequate pretrial notice is also required under the Due
Process Clause of the Fourteenth Amendment. Antoine v.
Taylor, 

, 

 (2021) (Antoine III). “It
is a basic component of a defendant’s fundamental right to
due process that a court may not find him guilty of a crime
for which he has not received notice or an opportunity to
prepare a defense.” State v. Arney, 

, 

 (2010) (internal quotation marks omitted).
         An indictment must include “[a] statement of the acts
constituting the offense in ordinary and concise language,
without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]”
ORS 132.550(7). The purposes of an indictment include
     “(1) to inform the defendant of the nature of the crime
     with sufficient particularity to enable him to make his
     defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof
     if he should be prosecuted further for the same cause, and
     (3) to inform the court of the facts charged so that it may
     determine whether or not they are sufficient to support a
     conviction.”
Antoine III, 

 (internal quotation marks omitted).
          Normally, an indictment satisfies those purposes
if it alleges the commission of a crime in the words of the
statute defining the offense. State v. Hale, 

,
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 (2003), cert den, 

 (2004).4 If there
are problems in the indictment, then a defendant may file
a demurrer. See ORS 135.630(2) (defendant may demur to
an indictment that does not substantially conform to statutory requirements, including the requirements in ORS
132.550(7)); see also State v. Sanders, 

, 

 (1977) (in a burglary case, holding that an indictment that failed to specify the defendant’s intent at the time
of the breaking and entering was subject to demurrer upon
the ground that it was not definite and certain).
         In Hale, the defendant was charged with six counts
of aggravated murder alleging that he committed murder
to conceal the crime of third-degree sexual abuse, but the
indictment did not provide notice of facts and circumstances
constituting sexual abuse. 

. Defendant
demurred seeking information about those offenses, but the
Supreme Court held that the trial court did not err in denying the demurrer. As explained by the Supreme Court,
        “[w]e continue to agree with [the] defendant that, in this
    case, where the record would support more than one incident of third-degree sexual abuse, [the] defendant was entitled to know the state’s precise theory of the case and which
    facts and circumstances the state was relying on to support
    the aggravated murder counts. However, we do not agree
    that requiring the trial court to sustain [the] defendant’s
    demurrer to the indictment is the proper (or only) vehicle
    for ensuring that [the] defendant obtains the information
    that he seeks. [The d]efendant had other avenues available
    to him for acquiring that information, such as later moving
    the court to require the state to elect a specific incident
    of third-degree sexual abuse, or requesting special jury
    instructions that clarify the matter.”

.
        We addressed a similar issue in Antoine I, a sex
crime case in which discovery revealed that the victim had
described more criminal acts than were alleged in the indictment. 

. The defendant filed a demurrer
    4
      See also State v. Burke et al., 

, 

 (1928) (“An indictment for a statutory offense is sufficient if the crime be charged in the words of
the statute” so long as “the words of the statute directly and expressly inform the
accused of the nature and cause of the accusation against him.”).
334                                        State v. Bravo-Chavez

to the indictment arguing, among other things, that it provided insufficient notice of the charges. 

 The trial court
overruled the demurrer, and we affirmed. We explained:
       “In this case, as in Hale, the record would support multiple incidents of the relevant crime generically charged,
   here, either sodomy or sexual abuse. However, also as in
   Hale, [the] defendant could have moved to discover the
   state’s election of the specific criminal acts that the state
   would prosecute at trial, in time for [the] defendant to tailor
   his defense to those specific incidents. [The d]efendant did
   file a demurrer before trial but did not later move for the
   state’s election of the specific criminal acts that it would
   prosecute at trial. That was so even though the state had
   put [the] defendant on notice at the hearing on the demurrer that it would make its election after it presented its
   case-in-chief. Because [the] defendant had another avenue
   to obtain adequate notice of the charges against him, we
   affirm the trial court’s overruling of the demurrer insofar
   as it was based on lack of notice.”
Id. at 79 (footnote omitted). In a footnote, we explained that
the Supreme Court’s reference in Hale to “later” moving for
an election implied that a defendant could request an election at trial,
   “but elucidation of the state’s precise theory at trial does
   not cure the problem of a lack of pre-trial notice, given
   that such notice is essential to pre-trial investigation, trial
   preparation, and litigation of evidentiary issues. Thus, we
   do not view Hale as impeding a defendant from filing a
   motion for the state’s election early in the case.”
Id. at 79 n 8.
         In State v. Payne, 

, 

 (2019), we further discussed the difference between a
pretrial “notice-based” motion for election and a motion for
election made at trial. When an indictment “is sufficient to
withstand a demurrer but still may fail to give a defendant
adequate notice of the precise charges against him, …
Oregon common law has created the ‘motion for election’ that
gives a defendant more information as to the basis for the
charges against him.” 

. In contrast to that notice-based motion, “[t]he end-of-trial motion to elect is designed
to ensure that the jury agrees as to every necessary element
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or concurs on the same occurrence in reaching a verdict on
a single count of a charged crime. The right to jury concurrence arises from Article I, section 11, of the Oregon
Constitution.” 

.
         With that legal framework in mind, we consider
whether the trial court erred in granting defendant’s motion
for pretrial election and dismissing 22 counts.
B.   Motion for Pretrial Election
         We generally “review a trial court’s ruling regarding the timing of an election for abuse of discretion.” State v.
Magana, 

, 

, rev den, 

 (2007). Discretion “refers to the authority of a trial
court to choose among several legally correct outcomes.”
State v. Rogers, 

, 

 (2000). “If there
is only one legally correct outcome, then ‘discretion’ is an
inapplicable concept.” 

 In addition, an exercise of discretion “may be predicated on certain subsidiary determinations—either findings of fact or conclusions of law—that
trigger their own standards of review.” State v. Burton, 

, 

 (2025) (internal quotation marks
omitted).
         On appeal, the state argues that the trial court
erred in granting the motion for pretrial election because a
demurrer is the exclusive way to challenge a lack of pretrial
notice. Whether trial courts can require a pretrial election
or whether, as the state contends, demurrer is the exclusive
way to challenge a lack of pretrial notice, is a legal question we review for errors of law. See Rogers, 

(if there is only one legally correct outcome, then discretion does not apply, and we review for legal error). Here, we
reject the state’s argument that a demurrer is the exclusive
mechanism to challenge a lack of pretrial notice because
it is directly contrary to Antoine I, in which we explained
that a defendant can move for pretrial election to “cure the
problem of a lack of pre-trial notice, given that such notice
is essential to pre-trial investigation, trial preparation, and
litigation of evidentiary issues.” 

 n 8.
        The state argues that Antoine I and Payne contain “incorrect dicta” about pretrial elections. In judicial
336                                                State v. Bravo-Chavez

opinions, the term “dictum” commonly refers to “a statement
that is not necessary to the decision.” Halperin v. Pitts, 

, 

 (2012). Although our discussion
of a motion for pretrial election in Payne was not necessary
to the outcome of the case, see Payne, 

,
our discussion of the same kind of motion in Antoine I was
not dicta. In Antoine I, we affirmed the trial court’s overruling of the demurrer precisely because the “defendant had
another avenue to obtain adequate notice of the charges
against him” and he did not do so. 

. Thus,
the availability of a motion for pretrial election was central
to the outcome of the case and not dicta.
          We are bound by our decision in Antoine I that a
defendant may file a motion for pretrial election. The state
does not argue in its opening brief that Antoine I was plainly
wrong or that we should overrule it.5 See State v. Civil, 

, 

 (2017) (“We can [overrule
precedent] only if we conclude that [it] was ‘plainly wrong,’ a
rigorous standard grounded in presumptive fidelity to stare
decisis.”). As we must, we therefore adhere to Antoine I. A
defendant can file a motion for pretrial election to obtain
notice of the factual occurrence that is the basis for a charge.
         We find further support for that conclusion in
Justice Duncan’s concurring opinion in Antoine III, in which
she emphasized the importance of a defendant’s right to pre-trial notice of the charges.
       “[I]t is now clear that, under Oregon law, a defendant
    has a right to notice of the charges against him sufficient to
    prepare and present his defense and, in cases like this, that
    right includes the right to pretrial notice of the incidents
    on which charges are based. … Consequently, in future
    cases, there should be no question that a defendant has a
    right to such notice, that the state must not violate that
    right, and that a trial court must enforce it.
        “When an indictment, read in the context of information provided in discovery, fails to provide notice sufficient
    for defense counsel to prepare and present his defense,
     5
       In its reply brief, the state asserts that we should overrule Antoine I, but
it does not develop the argument in any detail, and we generally do not consider
arguments raised for the first time in a reply brief. State v. Thomas, 

, 

 (2023). We decline to do so here.
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    defense counsel should take steps to obtain that notice, as
    petitioner’s defense counsel did in the underlying criminal
    case. Although case law is unclear regarding what specific
    steps defense counsel should take, the appellate decisions
    in the underlying criminal case and this post-conviction
    case suggest that those steps should include demurring
    to the indictment and, as a backup, moving for a pretrial
    election.
       “But in the end, the title of defense counsel’s filing or
    motion should not be dispositive when defense counsel
    alerts the trial court that the state has failed to provide
    sufficient notice for him to prepare and present a defense.
    When defense counsel does that, the trial court must compel the state to provide that notice.”

 (Duncan, J., concurring).6 That reasoning
is persuasive to us. In a criminal case, the trial court can
require the state to make a pretrial election, and a demurrer is not the exclusive way of challenging the lack of pre-trial notice.
         Turning to the merits of the trial court’s decision
to grant defendant’s motion for pretrial election, the trial
court noted that discovery in this case revealed about 1,000
alleged criminal acts over the course of 10 years, and it determined that defendant could not prepare a defense without
more information about the factual occurrences that would
serve as the basis for each of the 28 counts. The trial court
therefore required the state to elect the specific acts that
would serve as the basis for the charges.
         The trial court did not err or abuse its discretion
in so ruling. In Antoine I, we determined that the state’s
charging process failed to provide the defendant with sufficient pretrial notice and the same analysis applies here:
    “From discovery, defendant learned that the victim had
    described more criminal acts than were charged in the
    indictment, and the state elected the specific criminal acts

    6
      Justice Duncan referred to a motion for pretrial election as a “backup” to
a demurrer. Here, the state does not argue on appeal that defendant waived his
challenge to pretrial notice by failing to file a demurrer, nor did it raise that issue
below. In other cases currently pending before us, including State v. Van Nelson,
A178355, the state argues that the defendant did waive a claim for pretrial notice
by failing to file a demurrer, but that question is not at issue in the instant case.
338                                      State v. Bravo-Chavez

   that it was prosecuting only after the close of its case-inchief. As a result, the state’s charging method effectively
   allowed the state to adduce evidence of multiple criminal
   acts in each count of the indictment, without defendant
   knowing which of the acts would be specified and argued to
   the jury for convictions.”

. Similarly, here, discovery revealed “more
criminal acts than were charged in the indictment,” and,
for the most part, defendant had no way of “knowing which
of the acts would be specified and argued to the jury for
convictions.” 

 Generally, pretrial discovery is “intended
to minimize surprise and to eliminate ‘trial by ambush.’ ”
State v. Dickerson, 

, 

 (1978);
see also State v. Ferraro, 

, 

(2014) (defendants have a right to counsel who can “adequately prepare a defense for trial”). But here, pretrial discovery revealed over 1,000 alleged criminal acts, and, for
the most part, it provided no clear way for defendant to
investigate which occurrences the state would rely upon
at trial. Under those circumstances, denying defendant’s
motion for pretrial election would have violated his “right to
notice of the charges against him sufficient to prepare and
present his defense.” Antoine III, 

 (Duncan,
J., concurring).
         The trial court also expressed concern about the
improper admission of “other acts” evidence. Once again,
Antoine I provides support for the trial court’s decision.
In Antoine I, we pointed out that “the state’s method of
charging, combined with a late election, allows the state to
present evidence of a defendant’s multiple bad acts and then
to select, mid-trial, which of those will be considered as a
charge for the jury to decide.” 

. In the
instant case, after ruling on the motion for pretrial election,
the trial court ultimately determined that “other acts” evidence was admissible, but its concern when ruling on the
motion for pretrial election was nevertheless legitimate. In
a case like this one, where pretrial discovery revealed over
1,000 alleged criminal acts, it is not clear how defendant
could have assessed which bad acts were other bad acts
without requiring the state to make a pretrial election.
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         Although the state should “not be forced to make a
choice when it cannot intelligently do so,” an election must
“afford the defendant sufficient time, after the choice has
been made, to defend himself properly.” State v. Lee, 

, 

 (1954). Courts “should compel an election when it appears that, if the application is denied, the
defendant will be … prevented from properly making his
defense.” State v. Keelen, 

, 

 (1922).
           The state argues that in “resident child abuser”
cases, in which the victim typically testifies in a generic and
undifferentiated way to repeated acts of abuse over a substantial period of time, then “no reason exists to require”
the state to make an election before the close of the state’s
case-in-chief, and the state may not be able to make an
intelligent election until after the victim testifies. But that
argument ignores a defendant’s constitutional and statutory
right to notice of the charges. The purpose of a motion for
pretrial election is to ensure that defendants have notice
“ ‘of the specific criminal acts that the state would prosecute
at trial, in time for defendant[s] to tailor [their] defense to
those specific incidents.’ ” Payne, 

 (quoting
Antoine I, 

). By contrast, a motion for election made at the end of trial is grounded in the right to jury
concurrence. 

         In Antoine I, we stated:
   “There are cases in which young children or others with
   disabilities may not be able to describe a particular incident with specificity and instead may generically describe
   repeated abuse of a particular type that has occurred over
   a period of time; in other words, they cannot describe dates,
   exact locations, or other details to differentiate one incident
   from the next. However, that type of case should be separately addressed because it presents its own charging challenges. It suffices to say that this is not such a case. Indeed,
   the state was able to adequately identify discrete instances
   of criminal conduct for the jury because the victim was able
   to do so.”

 n 6. In our view, the instant case is closer
to Antoine I than to a case involving the testimony of young
children or others with disabilities. E is an adult, and in her
340                                                 State v. Bravo-Chavez

grand jury testimony she was able to identify some discrete
instances of abuse with enough specificity for defendant to
have notice of the factual occurrence underlying the charge.
As already explained, “such notice is essential to pre-trial
investigation, trial preparation, and litigation of evidentiary
issues.” 

 at 79 n 8.
          We understand the state’s concern about the difficulty of making a pretrial election in “resident child abuser”
case. “Other jurisdictions have dealt with the ‘undifferentiated evidence’ dilemma in child sexual abuse cases by treating a single alleged crime as a continuing or aggregated
offense, or by enacting ‘continuing child sexual abuse’ statutes.” State v. Ashkins, 

, 657 n 11, 

(2015).7 To the extent there is a problem of providing notice
sufficient to prepare a defense in such cases, the solution
likely lies with the legislature, not the courts. Focusing here
on whether the trial court erred or abused its discretion in
granting defendant’s motion for pretrial election and relying in particular on the analysis in Antoine I, and Justice
Duncan’s concurring opinion in Antoine III, we conclude
that it did not.
C. Motion to Dismiss
        We “review an order dismissing an accusatory
instrument for abuse of discretion.” State v. Freeman, 

, 

 (1994); see also State v. Hewitt,

, 

 (1999) (reviewing for abuse
     7
       See, e.g., Cal Penal Code § 288.5(a) (California statute defining the crime
of “continuous sexual abuse of a child”); see id., § 288.5(b) (“To convict under this
section the trier of fact, if a jury, need unanimously agree only that the requisite
number of acts occurred not on which acts constitute the requisite number.”).
Other states have enacted similar statutes. See, e.g., Ariz Rev Stat Ann § 13-1417
(Arizona statute defining the crime of continuous sexual abuse of a child); Del
Code Ann tit 11, § 776 (Delaware statute defining the crime of continuous sexual
abuse of a child); Haw Rev Stat § 707-733.6 (Hawaii statute defining the crime of
continuous sexual assault of a minor under the age of fourteen years); 

 (Iowa statute defining the crime of continuous sexual abuse of a child);
Md Code Ann, Crim Law, § 3-315 (Maryland statute defining the crime of “a
continuous course of conduct” with a victim who is under the age of 14 years); NY
Penal Law § 130.75 (New York statute defining the crime of “course of sexual conduct against a child in the first degree”); Tenn Code Ann § 39-13-518 (Tennessee
statute defining the crime of continuous sexual abuse of a child); Tex Penal Code
§ 21.02 (Texas statute defining the crime of continuous sexual abuse of young
child or disabled individual); Wis Stat Ann § 948.025 (Wisconsin statute defining
the crime of engaging in repeated acts of sexual assault of the same child).
Cite as 

 (2025)                               341

of discretion a trial court’s dismissal order when the state
declined to proceed to trial before it could appeal an adverse
pretrial ruling). Here, we conclude that the trial court’s dismissal of 22 counts was within the permissible range of its
discretion.
         As noted above, in response to the order granting
the motion for pretrial election, the state elected to prove
“the first time,” “the last time,” “[a] time,” or “the one time”
the offense occurred within a specified time range. Although
the state made that election in an effort to provide specificity,
after the prosecutor and defense counsel reviewed the grand
jury transcript together to identify evidence that might connect to each charge, the state could connect E’s grand jury
testimony to six of the counts, but not to 22 others. During
her grand jury testimony, E testified about the first time
the abuse occurred and her description of that incident provided the basis for the state’s charges in Count 1 (unlawful
sexual penetration) and Count 18 (sexual abuse). E testified about incidents that underlay the alternative charges of
first-degree sodomy in Counts 9 and 10 and second-degree
sodomy in Counts 16 and 17. However, the state did not link
E’s remaining grand jury testimony to specific counts in the
indictment.
          Unlike, for example, the charges in Antoine I,

, where, at trial, the state chose “factually distinct, specific criminal acts by adding to each of
the counts both a general description of the type of sexual
contact and a location where it occurred,” in this case the
state did not make a similar pretrial election for 22 of the
counts. Especially with respect to the counts alleging “[a]
time” defendant engaged in proscribed conduct, allowing
the state to proceed on charges that were untethered from
distinct factual occurrences created a risk of future double
jeopardy problems, see State v. Dodge, 

, 

 (2025), and it also created a risk of an impermissible variance between the indictment and the state’s proof
at trial, see State v. Johnson, 

, ___ P3d
___ (2025) (reversing and remanding conviction because it
violated the defendant’s constitutional right to be tried on
the same factual theory on which the grand jury based its
342                                                 State v. Bravo-Chavez

indictment). We cannot say that it was outside the range of
the trial court’s discretion to dismiss Counts 2 to 8, 11 to
15, and 19 to 28 of the indictment because the state did not
provide any additional detail as to the factual basis for those
counts.8
         The trial court dismissed those counts without
prejudice, so the state is not precluded from recharging the
defendant in the event that further developments enable
the state to present charges based on specific factual occurrences. But because the state did not connect 22 counts to
the grand jury testimony or other pretrial discovery, the
trial court did not abuse its discretion in dismissing those
counts.
         We emphasize that the trial court did not dismiss
the indictment outright. It provided an opportunity for the
state to hold defendant to account for some of the accusations against him, but in a way that did not violate defendant’s constitutional right to notice of the nature and the
cause of the accusations, as required by Article I, section
11. The trial court did not abuse its discretion in dismissing
without prejudice 22 of the 28 counts.
           Affirmed.




     8
       We caution that our opinion should not be construed to suggest that an
indictment that alleges “a time,” or “the first time,” or “the last time,” or “the
one time” an event occurs within a date range will never be sufficient to provide
notice to a defendant. The parties agreed that defendant had sufficient notice
for six counts. The question before us is whether the trial court abused its discretion in dismissing counts that were not tied to distinct factual occurrences.
Given that the state did not connect those counts to specific facts, despite the
trial court’s order granting the motion for pretrial election, we conclude the trial
court did not abuse its discretion in granting the motion to dismiss.