State v. Cahoon

2009 UT 9
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20070799
Plaintiff and Petitioner,
v.
F I L E D
Dwight Cahoon,
Defendant and Respondent. 	February 10, 2009
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First District, Logan Dep’t
The Honorable Clint S. Judkins
No. 041100622
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Christopher D.
Ballard, Asst. Att’y Gen., Tony C. Baird, Logan, for
plaintiff
John T. Caine, Randall W. Richards, Ogden, for
defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	The State filed two informations against Mr. Dwight
Cahoon based on the same criminal acts. 	In the original
information, the State asserted ten counts of aggravated sexual
abuse of a child and ten counts of forcible sexual abuse. 	When
Cahoon moved for dismissal on statute of limitations grounds, the
State conceded that the statute had run on the charges in the
original information, but the State simultaneously filed an
amended information charging Cahoon with ten counts of sexual
abuse of a child, a crime for which the State contended the
statute of limitations had not run.
¶2 	The district court thereafter dismissed the original
information, but the court denied Cahoon’s motion to dismiss the
amended information, rejecting his argument that the charges

No. 20070799 	2
alleged in the amended information were precluded by the statute
of limitations and the double jeopardy clauses of the Utah and
United States constitutions.
¶3 	Cahoon then entered a conditional guilty plea to two
counts in the amended information. 	The district court sentenced
him to two concurrent terms of one to fifteen years, but stayed
the sentence pending his appeal. 	The court of appeals reversed
Cahoon’s conviction, holding that the amended charges violated
his right to be free from double jeopardy. 	We reverse,
concluding that jeopardy had not attached at the time the
district court dismissed the original information.
BACKGROUND
¶4 	In 2004, Ms. Nancy Lucchetti contacted the Logan City
Police Department and alleged acts of sexual abuse by Cahoon, her
brother-in-law, between the years of 1989 and 1992. 	Lucchetti
was twelve years old in 1989. 	Subsequent to Lucchetti’s
allegations, Cahoon admitted to police that he had indeed
committed acts of sexual abuse against Lucchetti on some fifteen
to twenty occasions.
¶5 	Shortly after Lucchetti made these allegations, the
State charged Cahoon by information with ten counts of aggravated
sexual abuse of a child and ten counts of forcible sexual abuse.
Cahoon moved to dismiss all of the charges on the ground that the
statute of limitations had expired. 	In response, the State
conceded that the statute had run on the original charges.
Simultaneously, the State submitted an amended information,
charging Cahoon with ten counts of sexual abuse of a child, a
crime for which the State contended the statute of limitations
had not run. 	The charges in the amended information were based
upon the same conduct that supported the original charges.
Subsequently, the trial judge dismissed with prejudice the
original charges.
¶6 	Cahoon then moved to dismiss the amended charges on the
following grounds: 	the statute of limitations had also run on
the amended charges and the amended charges violated Cahoon’s
right to be free from double jeopardy. 	The district court ruled
against Cahoon on both grounds.
¶7 	After the court’s ruling, Cahoon entered conditional
guilty pleas to two counts in the amended information. 	The
district court then sentenced him to two concurrent terms of one

1 The court of appeals indicated in its opinion, however,
that Cahoon’s brief offered “no basis for independent reliance on
the state constitution.” 	State v. Cahoon, 2007 UT App 269, ¶ 8
n.1, 167 P.3d 533 (internal quotation marks omitted).
Accordingly, the court of appeals did not conduct a state
constitutional analysis. 	Before us, Cahoon has not advanced a
state constitutional argument, and we, therefore, do not address
the issue either.
2 Cahoon, 2007 UT App 269, ¶ 1.
3 Id. ¶¶ 11-12.
4 Id. (discussing United States v. Oppenheimer, 242 U.S. 85,
87-88 (1916)).
5 Id. ¶ 14 (citing Utah Code Ann. § 76-1-403 (2003)).
3 	No. 20070799
to fifteen years at the Utah State Prison, but stayed execution
of the sentence and granted him a certificate of probable cause.
¶8 	Cahoon timely appealed, raising double jeopardy and due
process claims based on the United States and Utah
constitutions. 1 	The court of appeals held that the amended
charges violated Cahoon’s federal constitutional right to be free
from double jeopardy. 2 	Specifically, the court of appeals held
that Cahoon’s case was a rare circumstance where a pretrial
dismissal was the functional equivalent of an acquittal because
it resolved a factual element of the crime--time. 3 	To support
its holding, the court of appeals relied on United States v.
Oppenheimer, wherein the United States Supreme Court held that
the government could not re-charge an accused with charges
identical to those that were dismissed as barred by the statute
of limitations. 4 	The court of appeals also grounded its holding
in Utah statutory protections against double jeopardy, which
provide that, once acquitted, a defendant cannot be charged again
for the same criminal act. 5
¶9 	We granted the State’s petition for certiorari to
review the court of appeals’ decision. 	We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(a) (2008).

6 Bluemel v. State, 2007 UT 90, ¶ 9, 173 P.3d 842 (internal
quotation marks omitted).
7 United States v. Martin Linen Supply Co., 430 U.S. 564,
570 (1977) (stating that a threshold consideration to applying
double jeopardy protection is a determination of whether “the
accused has actually been placed in jeopardy”).
8 Id. at 571 (“Perhaps the most fundamental rule in the
history of double jeopardy jurisprudence has been that ‘[a]
verdict of acquittal . . . could not be reviewed, on error or
otherwise, without putting [a defendant] twice in jeopardy, and
thereby violating the Constitution.’” (alterations in original)
(quoting United States v. Ball, 163 U.S. 662, 671 (1896))).
9 Martin Linen Supply Co., 430 U.S. at 569 (quoting United
States v. Wilson, 420 U.S. 332, 346 (1975)).
No. 20070799 	4
STANDARD OF REVIEW
¶10 	On certiorari, “[w]e review the court of appeals’
decision for correctness and give its conclusions of law no
deference.” 6
ANALYSIS
¶11 	In this case, the Double Jeopardy Clause of the United
States Constitution precludes prosecution based on the amended
information only if (1) jeopardy had attached at the time of the
pretrial dismissal of the original information 7 and (2) the
district court’s dismissal of the original information on statute
of limitations grounds functioned as an acquittal. 8 	Because we
hold that jeopardy had not attached at the time of the pretrial
dismissal, we do not reach the question of whether a dismissal of
charges as barred by the statute of limitations would function as
an acquittal if the determination were made after jeopardy
attached.
¶12 	The Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution provides in relevant part: 	“[n]or
shall any person be subject for the same offense to be twice put
in jeopardy of life or limb.” 	“[T]he ‘controlling constitutional
principle’” underlying the Double Jeopardy Clause is the
“prohibition[] against multiple trials.” 9 	Accordingly, double
jeopardy protections attach only “when a jury is empaneled and
sworn, or, in a bench trial, when the judge begins to receive

10 Id. (citing Illinois v. Somerville, 410 U.S. 458, 471
(1973)).
11 Serfass v. United States, 420 U.S. 377, 391 (1975)
(quoting United States v. Jorn, 400 U.S. 470, 479 (1970)).
12 State v. Cahoon, 2007 UT App 269, ¶ 15, 167 P.3d 533.
13 Id. ¶ 8 (quoting Justices of Boston Mun. Court v. Lydon,
466 U.S. 294, 306-07 (1984)).
14 242 U.S. 85 (1916).
15 Cahoon, 2007 UT App 269, ¶ 12. 	Implicit in the court of
appeals’ holding is the notion that if a decision functions as an
acquittal, then jeopardy necessarily attaches. 	We disagree. 	The
rule that double jeopardy “protects against a second prosecution
for the same offense after acquittal,” Justices of Boston Mun.
Court, 466 U.S. at 306-07, must be read in combination with the
rule that the “state of jeopardy attaches when a jury is
empaneled and sworn, or, in a bench trial, when the judge begins
to receive evidence,” Martin Linen Supply Co., 430 U.S. at 569.
The logical conclusion of reading these two rules together is
that pretrial determinations are not acquittals for purposes of
double jeopardy analysis. 	This conclusion leaves open the
question of whether the same determination, if made after a trial
commenced, could function as an acquittal. 	We do not reach this
question.
5 	No. 20070799
evidence.” 10 	These two parallel stages in the legal process are
the functional equivalent of one another and differ only because
the accused may elect either a jury trial or a bench trial.
Regardless of the form of the trial, “jeopardy does not attach
until a defendant is ‘put to trial before the trier of the
facts.’” 11
¶13 	A majority of the court of appeals panel reversed the
district court’s ruling that jeopardy had not attached and held
that the State’s amended information violated Cahoon’s right to
be free from double jeopardy. 12 	Working under the principle that
the Double Jeopardy Clause “‘protects against a second
prosecution for the same offense after acquittal,’” 13 the
majority relied upon United States v. Oppenheimer 14 in concluding
that Cahoon’s case is a “rare case[] in which a pretrial decision
functions as an acquittal” and bars “further prosecution.” 15
Judge Bench, dissenting, opined that Oppenheimer did not support

16 Id. ¶ 18 (Bench, J., dissenting).
17 Id. 	Compare United States v. Hill, 473 F.2d 759, 762
(9th Cir. 1972) (holding that a pretrial dismissal on statute of
limitations grounds bars a subsequent prosecution of the same
criminal activity) with Paradise v. CCI Warden, 136 F.3d 331, 337
(2d Cir. 1998) (suggesting that Oppenheimer does not bar
subsequent charges after a dismissal on statute of limitations
grounds provided that the subsequent charges are different from
the original charges).
18 Cahoon, 2007 UT App 269, ¶ 18.
19 See Rodrigues v. Hawaii, 469 U.S. 1078, 1080-81 (1984)
(Brennan, J., dissenting from the denial of the petition for writ
of certiorari) (“[W]hether jeopardy attaches to an acquittal
. . . that occurred prior to the empaneling of a jury or the
calling of the first witness” is an issue that “has engendered
division amongst the commentators as well as a conflict among the
Courts of Appeals.”).
20 242 U.S. at 85-86.
No. 20070799 	6
the position adopted by the majority. 16 	He recognized a split
among the circuits on the issue, 17 but concluded that the better-
reasoned position was that the holding in Oppenheimer rested on
the principle of collateral estoppel, not double jeopardy. 18
This division among the court of appeals panel is a reflection of
the disagreement between the federal circuits on the question of
whether jeopardy may attach at the time of a pretrial
dismissal. 19 	Reviewing the text of Oppenheimer and subsequent
Supreme Court precedent, we conclude, as did Judge Bench, that
Oppenheimer was, in fact, based on principles of collateral
estoppel, not double jeopardy, and that jeopardy does not attach
at pretrial proceedings.
¶14 	Oppenheimer is a 1916 United States Supreme Court case
wherein the government brought charges against an accused that
were identical to charges a trial court had previously dismissed
on statute of limitations grounds. 20 	Oppenheimer challenged the
second prosecution on the ground that the offense had already
been dismissed for failure to prosecute within the statute of

21 Id. at 86.
22 Id.
23 Id. at 87. 	“‘Res judicata’ is the term traditionally
used to describe two discrete effects: 	. . . claim preclusion
. . . and . . . issue preclusion, long called ‘collateral
estoppel.’” 	Baker by Thomas v. GMC, 522 U.S. 222, 233 n.5
(1998). 	The Court in Oppenheimer wrote in terms of “res
judicata.” 	242 U.S. at 87. 	Courts interpreting Oppenheimer used
the term “collateral estoppel” in conducting their analysis.
See, e.g., Ashe v. Swenson, 397 U.S. 436, 464 (1970) (Burger, J.,
dissenting) (“The majority rests its holding in part on a series
of cases beginning with United States v. Oppenheimer, . . . which
did not involve constitutional double jeopardy but applied
collateral estoppel as developed in civil litigation to federal
criminal prosecutions as a matter of this Court’s supervisory
power over the federal court system.” (emphasis added)); United
States v. Dionisio, 503 F.3d 78, 85 (2d Cir. 2007); United States
v. Keller, 624 F.2d 1154, 1157 (3d Cir. 1980). 	In our analysis
in this case, we will use the term “collateral estoppel.”
Collateral estoppel “prevents parties or their privies from
relitigating facts and issues in the second suit that were fully
litigated in the first suit.” 	Oman v. Davis Sch. Dist., 2008 UT
70, ¶ 28, 194 P.3d 956 (citation and internal quotation marks
omitted). 	The Fifth Amendment Double Jeopardy Clause prevents,
in relevant part, “a second prosecution for the same offense
after acquittal.” 	Justices of Boston Mun. Court, 466 U.S. at
306. 	Therefore, in the criminal context, collateral estoppel
prevents subsequent prosecution with charges that were previously
dismissed, and double jeopardy prevents subsequent prosecution
with any charges of the same criminal activity after the
defendant has been acquitted.
7 	No. 20070799
limitations. 21 	The trial court granted Oppenheimer’s motion. 22
On appeal, the government argued that the trial court erred in
quashing the second indictment because the trial court applied
“res judicata,” a doctrine that “does not exist for criminal
cases except in the modified form of the Fifth Amendment.” 23 	The
United States Supreme Court held that a criminal defendant is
protected by both collateral estoppel and double jeopardy:
It cannot be that the safeguards of the
person, so often and so rightly mentioned

24 Oppenheimer, 242 U.S. at 87.
25 Id. at 87-88 (alterations in original) (quoting Hawkins,
J., in The Queen v. Miles, (1890), 24 Q.B.D. 423, 431).
26 Cahoon, 2007 UT App 269, ¶ 12.
No. 20070799 	8
with solemn reverence, are less than those
that protect from a liability in debt. 24
Having established that a criminal defendant is protected by
collateral estoppel, the Court then held that collateral estoppel
protected Oppenheimer from the prosecution of charges identical
to those originally barred by a finding that they violated the
statute of limitations:
[A] judgment for the defendant upon the
ground that the prosecution is barred goes to
his liability as a matter of substantive law
and one judgment that he is free as matter of
substantive law is as good as another. 	A
plea of the statute of limitations is a plea
to the merits, . . . and however the issue
was raised in the former case, after judgment
upon it, it could not be reopened in a later
prosecution. . . . 	“Where a criminal charge
has been adjudicated upon by a court having
jurisdiction to hear and determine it, that
adjudication, whether it takes the form of an
acquittal or conviction, is final as to the
matter so adjudicated upon, and may be
pleaded in bar to any subsequent prosecution
for the same offence. . . . 	In this respect
the criminal law is in unison with that which
prevails in civil proceedings.” 25
Thus, the Court in Oppenheimer discussed both double jeopardy and
collateral estoppel but held that collateral estoppel, not double
jeopardy, barred the government from bringing identical charges
against a defendant after a pretrial dismissal. 	Accordingly, we
conclude that the court of appeals’ interpretation of
Oppenheimer--that double jeopardy bars subsequent prosecution
after charges are dismissed for violating the statute of
limitations--is incorrect. 26 	Rather, we determine that
Oppenheimer stands for the principle that collateral estoppel
prevents the government from bringing identical charges against a

27 See Oppenheimer, 242 U.S. at 87-88.
28 397 U.S. at 443.
29 See, e.g., Schiro v. Farley, 510 U.S. 222, 230 (1994);
Martin Linen Supply Co., 430 U.S. at 569; United States v.
Wilson, 420 U.S. 332, 336 (1975); Serfass v. United States, 420
U.S. 377, 388 (1975); see also Rodrigues v. Hawaii, 469 U.S.
1078, 1081 (1984) (Brennan, J., dissenting from the denial of the
petition for writ of certiorari) (citing 1 W. LaFave & J. Israel,
Criminal Procedure § 24.3, pp. 82-83 (1984) for the proposition
that jeopardy does not attach to pretrial decisions).
9 	No. 20070799
defendant if the original charges were dismissed for violating
the statute of limitations. 27
¶15 	Subsequent United States Supreme Court precedent
supports our reading of Oppenheimer. 	In Ashe v. Swenson, the
Court stated, “Although first developed in civil litigation,
collateral estoppel has been an established rule of federal
criminal law at least since this Court’s decision more than 50
years ago in United States v. Oppenheimer.” 28 	Further, the Court
has repeatedly articulated that double jeopardy does not attach
until a trial begins. 29 	Therefore, a criminal defendant who has
not yet been on trial is protected against a subsequent
prosecution by collateral estoppel, not double jeopardy.
¶16 	Utah’s statutory double jeopardy protection, likewise,
does not attach at pretrial proceedings. 	Under section 76-1-
403(1)(b)(i) of the Utah Code, a criminal defendant is protected
from subsequent prosecutions for the same criminal act after
acquittal. 	Section 76-1-403(2) states that an acquittal occurs
if the prosecution “resulted in a finding of not guilty by the
trier of facts or in a determination that there was insufficient
evidence to warrant conviction.” 	(Emphasis added.) 	A pretrial
determination of the sufficiency of the evidence resolves the
question of whether the defendant may be bound over for trial,
not whether the defendant may be convicted. 	Only a trial carries
the jeopardy of a conviction by the trier of fact; therefore,
only at a trial does Utah’s statutory double jeopardy protection
attach.
¶17 	Accordingly, we hold that, because the State brought
different charges against Cahoon in the amended information,
neither Oppenheimer nor the doctrine of collateral estoppel
applies in this case. 	Further, Cahoon’s double jeopardy

No. 20070799 	10
protections do not bar the counts in the amended information
because jeopardy does not attach prior to trial.
CONCLUSION
¶18 	We reverse the court of appeals’ decision and remand
this case to the district court for further proceedings
consistent with this opinion. 	Because we hold that jeopardy had
not attached at the time of the pretrial dismissal, we do not
reach the question of whether a dismissal on double jeopardy
grounds may function as an acquittal after jeopardy has attached.
Reversed.
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¶19 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.