(dissenting):
T 17 I respectfully dissent. Neither United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), nor Utah statutory law compels the result reached here by the majority.
1 18 My colleagues have failed to cite even one case decided in the ninety-one years since Oppenheimer that applies Oppenheimer in the way that they do. The majority recognizes that the dearth of case law to support its reading of Oppenheimer is problematic. While relying on United States v. Hill, 473 F.2d 759 (9th Cir.1972), one of the only cases cited to in support of its position, the majority acknowledges the unclear legal reasoning in Oppenheimer. See id. at 762 (stating that it is not clear whether Oppern-heimer is based on res judicata or double jeopardy). There is other case law, most notably Paradise v. CCI Warden, 136 F.3d *538331 (2nd Cir.1998), suggesting that Oppenheimer should not be a bar here. See id. at 337. In Paradise, the Second Circuit affirmed the trial court's decision to permit the State to prosecute the defendant for capital murder after the original charges for felony murder were dismissed because the applicable statute of limitations had run. See id. at 333-34. In addressing the "due process 'overtones' in Justice Holmes' Oppenheimer opinion," the Second Circuit stated that Op-penhkeimer did not apply because the State was seeking for the first time to litigate the defendant's guilt for, or innocence of, the new crime charged and was not looking for a second chance to proceed on the original charges. See id. at 337.
19 The majority also relies on Utah Code section 76-1-408 in deciding that the State should be barred from prosecuting Defendant for sexual abuse of a child based on the same facts as the dismissed aggravated charges. Section 76-1-4083(1) outlines the circumstances whereby a defendant, who "has been prosecuted for one or more offenses arising out of a single eriminal episode," may not be subsequently prosecuted "for the same or a different offense arising out of the same criminal episode." Utah Code Ann. § 76-1-408(1) (2003). To be barred, a subsequent prosecution must be "for an offense that was or should have been tried ... in the former prosecution," and the former prosecution:
(i) resulted in acquittal; or
(ii) resulted in conviction; or
(i) was improperly terminated; or
(iv) was terminated by a final order or judgment for the defendant that has not been reversed, set aside, or vacated and that necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.
Id. § 76-1-408(1)(a)-(b).
20 In the present case, the majority has equated the dismissal of the former prosecution on statute of limitations grounds to an acquittal, thereby barring subsequent prosecution of Defendant for any crimes arising out of the same criminal episode. However, the dismissal here is not in line with the statute's definition of an acquittal: "There is an acquittal 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." Id. § 76-1-408(2). In dismissing the aggravated charges, the trial court did not make a determination of guilt or innocence and did not conclude that the evidence was insufficient. The trial court merely responded to a pretrial concession that the applicable statute of limitations had run on the aggravated sexual abuse charges. Such court action does not amount to an acquittal under section 76-1-
121 The dismissal therefore falls under the type of court action described in section 76-1-408(1)(b)(iv) because the prosecution "was terminated by a final order or judgment for the defendant." Id. § 76-1-403(1)(b)(iv). Subpart (b)(iv) prevents subsequent prosecution only when the final order terminating the former prosecution "necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution." Id. Here, the State's subsequent prosecution of Defendant does not require proving any fact that would be inconsistent with the trial court's dismissal of the aggravated charges because the statute of limitations on which the dismissal was based does not apply to the crime of sexual abuse of a child.
122 The Utah Supreme Court has previously acknowledged the existence of the precise problem presented in the instant case: whether a defendant may be prosecuted for sexual abuse of a child after charges of aggravated sexual abuse of a child have been dismissed for falling outside the applicable statute of limitations. See State v. Lusk, 2001 UT 102, ¶¶ 32-33, 37 P.3d 1103. The supreme court did not decide the issue in that case because it was "beyond the seope of review," but the issue is squarely presented in the instant appeal. Id. at 1 32.
123 Defendant's guilt or innocence relating to the charges of sexual abuse of a child has not been previously adjudicated and the applicable Utah statute does not bar the proposed subsequent prosecution because the *539statute of limitations does not apply to the newly charged crimes. I therefore cannot agree to reverse on grounds that Defendant has previously been acquitted of the crimes charged in the Amended Information.