State v. Roberts

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,233

STATE OF KANSAS,
Appellant,

v.

CHESTER ROBERTS, III,
Appellee.


SYLLABUS BY THE COURT

1.
Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain
an appeal only if the appeal is taken in the manner prescribed by statutes.

2.
The interpretation of statutes and the determination of jurisdiction involve
questions of law over which this court's scope of review is unlimited.

3.
While K.S.A. 22-3602(b)(1) grants the State the right to appeal an order
dismissing a complaint, information, or indictment, the State does not have the right to
appeal a judgment of acquittal because appellate review of the decision after acquittal
would constitute double jeopardy.

4.
An acquittal that cannot be appealed by the State is a judgment that resolves some
or all of the factual elements of the offense charged after jeopardy has attached.

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5.
Jeopardy attaches only when a jury is impaneled and sworn or in a bench trial
when the judge begins to receive evidence.

6.
K.S.A. 21-3108(1)(b) does not preclude the State from appealing an order of
dismissal if the appeal is not otherwise barred.

7.
Under the facts of this case where an order of dismissal was entered before trial,
meaning before jeopardy had attached, the order was not a judgment of acquittal and the
State's appeal was not barred by the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution.

Review of the judgment of the Court of Appeals in an unpublished decision filed March 13, 2009.
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 2, 2011.
Judgment of the Court of Appeals affirming the district court on the issue subject to our grant of review is
affirmed. Judgment of the district court is affirmed.

Amanda G. Voth, assistant district attorney, argued the cause, and Benjamin J. Fisher, senior
assistant district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, were on
the brief for appellant.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: In a pretrial ruling in this criminal case, the district court ruled that
the defendant could not be charged with violating K.S.A. 2007 Supp. 65-4160(a), a drug
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severity level 4 felony, for possessing without a prescription a generic form of the
prescription drug Lortab, a schedule III drug. The issue before us is whether the district
court's ruling was a judgment of acquittal, which is an order the State cannot appeal, or
was an order of dismissal, which is an order the State can appeal. We conclude the order
was an order of dismissal because it was issued before jeopardy attached.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2007, Chester Roberts, III, was arrested for the unlawful possession
of prescription drugs after he was found in possession of a single tablet of generic Lortab,
a pain reliever containing acetaminophen and 5 milligrams of hydrocodone bitrate, for
which he had no prescription. Under the version of the Uniform Controlled Substances
Act in effect at that time, the State charged Roberts with one count of possession of
hydrocodone in violation of K.S.A. 2007 Supp. 65-4160(a), a drug severity level 4
felony.

Roberts waived his preliminary hearing and formal arraignment and was bound
over for trial. Then, he filed a pretrial motion to dismiss the charge, claiming the State
would not be able to present any evidence that he possessed hydrocodone as a schedule II
controlled substance, which he contended was required for a conviction under K.S.A.
2007 Supp. 65-4160(a). He essentially argued that K.S.A. 2007 Supp. 65-4160(a), which
criminalizes, in part, the possession of "any opiates, opium or narcotic drugs,"
specifically applies to schedule II controlled substances and does not include schedule III
"hydrocodone combination products," such as generic Lortab.

In response, the State did not dispute that Roberts possessed generic Lortab or that
generic Lortab falls into schedule III because it is a compound composed of
acetaminophen and a small amount of hydrocodone. In fact, the State's response to
Roberts' motion to dismiss included a copy of the forensic lab report of the Kansas
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Bureau of Investigation, which characterized the tested substance as "[h]ydrocodone in a
schedule III preparation." The State did disagree with Roberts' legal argument, however,
and asserted that K.S.A. 2007 Supp. 65-4160(a) criminalizes the possession of generic
Lortab. (This same issue is being appealed in State v. Collins, No. 101,092, 2010 WL
596996 [Kan. App. 2010] [unpublished opinion], rev. granted January 10, 2011).

The district court accepted Roberts' argument and granted the motion to dismiss
the felony charges. The district court then considered a motion to amend that the State
had filed. In the motion to amend, the State, congruous with its argument that K.S.A.
2007 Supp. 65-4160(a) should be interpreted broadly, sought permission to amend the
complaint to change the phrase "possess or have under his control an opiate drug, to-wit:
Hydrocodone" into "possess or have under his control an opiate narcotic drug, to-wit:
hydrocodone." The district judge did not permit the State to amend its complaint, stating:

"If the [S]tate wants to amend to a misdemeanor, they'll have that right. If they want to
amend to a felony then the court will not grant the right.
. . . .
". . . If you want to refile it as a felony then I suspect another judge will rule on it,
or I will rule on it if it comes back to me. If you [do not] file it as a misdemeanor, do not
think that's appropriate, then your option is to file it as a felony . . . before a new judge."

Court of Appeals' Decision

The State appealed the district court's order of dismissal under K.S.A. 22-
3602(b)(1), which permits the prosecution to take an appeal as a matter of right from "an
order dismissing a complaint, information or indictment." See State v. Roberts, No.
100,233, 2009 WL 744410 (Kan. App. 2009) (unpublished opinion), rev. granted January
8, 2010. The State argued that the district court erred in its interpretation of K.S.A. 2007
Supp. 65-4160 and in dismissing the charge against Roberts.

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In response, Roberts argued that (1) the State could not appeal the district court's
dismissal because the court's order was equivalent to a judgment of acquittal from which
an appeal is barred by K.S.A. 21-3108(1)(b) and the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and (2) even if the State's appeal was
permissible, the district court did not err in dismissing the charge.

With regard to the jurisdiction issue, the Court of Appeals observed that under
K.S.A. 21-3108(1)(a), a subsequent prosecution of a defendant is barred if the defendant
was formerly prosecuted for the same crime, based on the same facts, if such former
prosecution resulted in a conviction, acquittal, or determination that the evidence was
insufficient to warrant a conviction. The Court of Appeals further recognized that a
judgment of acquittal terminates a prosecution and double jeopardy principles bar further
proceedings against the defendant for that offense, but jeopardy must have attached for
the prosecution to be precluded. Roberts, 2009 WL 744410, at *2.

The Court of Appeals noted that a defendant is generally not in jeopardy in a case
tried to the district court until the court begins to hear evidence. It then pointed out that,
although before dismissing the criminal complaint in the present case the district court
made the factual finding that the drug, generic Lortab, was a schedule III controlled
substance, the district court heard no witness testimony and ruled "solely based upon
Roberts' motion to dismiss and the State's response." Roberts, 2009 WL 744410, at *2.
Consequently, the panel found that jeopardy did not attach and there was no Fifth
Amendment violation preventing further prosecution of Roberts' alleged offense. Roberts,
2009 WL 744410, at *2.

With regard to the merits of the district court's decision to dismiss the criminal
complaint, the Court of Appeals simply affirmed. No legal analysis was provided. The
Court of Appeals gave the following succinct holding: "We affirm the district court's
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decision of dismissal. The dismissal is not an acquittal; therefore, double jeopardy did not
attach." Roberts, 2009 WL 744410, at *3.

This court granted the petition for review filed by Roberts, in which he raises the
sole issue of whether the State was barred from appealing the district court's order of
dismissal because the order was equivalent to a judgment of acquittal. Roberts contends
the district court acquitted him of the charge; therefore, K.S.A. 21-3108(1)(a) and double
jeopardy principles would bar the State from appealing the district court's decision and
from prosecuting Roberts a second time for the same act (possession of hydrocodone).

The defense's request for dismissal of the charge was granted in Roberts' favor and
affirmed by the Court of Appeals. Therefore, Roberts does not request this court's review
of that issue, and the State did not file a cross-petition for review. Consequently, the
underlying merits of this case, i.e., whether the district court erred in dismissing the
complaint and in making the legal conclusion that felony possession under K.S.A. 2007
Supp. 65-4160(a) does not include schedule III hydrocodone, are not before this court.

Our jurisdiction arises from K.S.A. 22-3602(e) (petition for review) and K.S.A.
20-3018(b) (same).

ANALYSIS

Roberts frames his argument as one of appellate jurisdiction, arguing the State
only has the right to appeal the district court's pretrial order if it is a dismissal of the
complaint pursuant to K.S.A. 22-3602(b)(1) and the State cannot appeal an acquittal.

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Standard of Review

Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain
an appeal only if the appeal is taken in the manner prescribed by statutes. See State v.
Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Hence, we must examine the statutory
authority for the State's appeal in order to resolve the issue raised by Roberts. The
interpretation of statutes and the determination of jurisdiction involve questions of law
over which this court's scope of review is unlimited. State v. McDaniel, 292 Kan. 443,
___, 254 P.3d 534 (2011), slip op. at 3.

The statute on which the State brought its appeal is K.S.A. 22-3602, which
provides, in part:

"(b) Appeals to the court of appeals may be taken by the prosecution from cases
before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony
or for crimes committed on or after July 1, 1993, in any case involving an off-grid
crime." (Emphasis added.)

From the face of Roberts' motion, which was labeled as a motion to dismiss, and
the district court's order, which was labeled as an order of dismissal, it seems apparent
that the State had a right to appeal the decision under K.S.A. 22-3602(b)(1). Roberts
argues, however, that the court's order was the equivalent of a judgment of acquittal
rather than an order of dismissal.

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Order of Dismissal or Judgment of Acquittal?

The distinction between an order of dismissal and a judgment of acquittal is
critical to our resolution of this appeal. While K.S.A. 22-3602(b)(1) grants the State the
right to appeal an order dismissing a complaint, information, or indictment, the State does
not have the right to appeal a judgment of acquittal. E.g., State v. Crozier, 225 Kan. 120,
122, 587 P.2d 331 (1978); State v. Gustin, 212 Kan. 475, 480, 510 P.2d 1290 (1973).
This court explained in Gustin that this rule arose because "[a]ppellate review of the
decision after acquittal would constitute double jeopardy. (Kepner v. United States, 195
U.S. 100, 49 L. Ed. 114, 24 S. Ct. 797 [1904].)" Gustin, 212 Kan. at 480. This prohibition
derives from the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, which 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." U.S. Const. amend. V. "[T]he
'controlling constitutional principle'" underlying the Double Jeopardy Clause is the
"prohibition[ ] against multiple trials." United States v. Martin Linen Supply Co., 430
U.S. 564, 569, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977) (quoting United States v. Wilson,
420 U.S. 332, 346, 95 S. Ct. 1013, 43 L. Ed. 2d 232 [1975]); see Kan. Const. Bill of
Rights, § 10 ("No person shall be a witness against himself, or be twice put in jeopardy
for the same offense.").

Although these principles make it clear that the State cannot appeal from a
judgment of acquittal that implicates the Double Jeopardy Clause, the "distinction
between a judgment of acquittal or of dismissal is often not easily determined." State v.
Beerbower, 262 Kan. 248, 252, 936 P.2d 248 (1997). As we examine our prior case law
for guidance on how to make the distinction, one point has been repeatedly stated: It
does not matter how a party or a district court labels a motion or order; that
characterization does not control. See State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610
(1979) (citing United States v. Scott, 437 U.S. 82, 95-96, 98 S. Ct. 2187, 57 L. Ed. 2d 65
[1978]; Martin Linen Supply Co., 430 U.S. at 571; Wilson, 420 U.S. at 336; United States
9

v. Jorn, 400 U.S. 470, 478 n.7, 91 S. Ct. 547, 27 L. Ed. 2d 543 [1971]); Beerbower, 262
Kan. at 252-53. Hence, our ruling cannot be based on Roberts' request for a dismissal or
on the district court's reference to the ruling as an order of dismissal.

Rather, as we will discuss, the applicable statutes and cases define an acquittal that
cannot be appealed by the State as a judgment that (1) resolves a factual element (2) after
jeopardy has attached.

Resolution of Factual Elements

The first aspect of this statement is the requirement that a judgment of acquittal be
"'a resolution, correct or not, of some or all of the factual elements of the offense
charged.'" Whorton, 225 Kan. at 254 (quoting Scott, 437 U.S. at 97); see Kansas Law
Review Criminal Procedure Survey, 58 Kan. L. Rev. 1311, 1412 (June 2010)
("Judgments of acquittal resolve some or all of the factual elements of the case, and the
law protects defendants from double jeopardy by preventing the prosecution from
appealing these judgments."); 15B Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction § 3919.6, p. 690 (2d ed. 1992) ("[T]he fact that the order is
characterized as an acquittal does not defeat appeal if it does not rest on factual
determination of an element of guilt or innocence.").

This general statement is supported by the Kansas statute that authorizes
judgments of acquittal, K.S.A. 22-3419, which provides in pertinent part:

"(1) The court on motion of a defendant or on its own motion shall order the
entry of judgment of acquittal of one or more crimes charged in the complaint, indictment
or information after the evidence on either side is closed if the evidence is insufficient to
sustain a conviction of such crime or crimes. If a defendant's motion for judgment of
acquittal at the close of the evidence offered by the prosecution is not granted, the
defendant may offer evidence without having reserved the right." (Emphasis added.)
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This court emphasized the requirement imposed by the italicized language in its
analysis of whether the order at issue in Whorton, 225 Kan. 251, was an order of
dismissal or acquittal. There, the defendant was charged with 16 counts of felony theft for
depositing checks made to the order of a corporate entity, Bi-Agra Association, into a
bank account opened by the defendant in the name of an unrelated but similarly named
corporate entity, Bi-Agra of America Association. During the trial, the defendant moved
for a judgment of acquittal after the jury began hearing testimony from one witness.

In deciding the motion, the district court heard counsels' arguments outside the
presence of the jury. The parties stipulated that a total of 14 corporations using as a part
of their name "Bi-Agra" and "Association" were in existence and chartered in the state of
Kansas. Defense counsel argued that since the individual check drawees, who were
endorsed as witnesses, had been stricken from the amended complaint, the State could
not prove ownership of the checks in the proper Bi-Agra Association because officers of
the 14 various "associations" were not endorsed as material witnesses. The district court
granted the defendant's "motion to dismiss," stating the charges were not specific enough
to allow for an adequate defense.

On appeal, this court took note of the contention that the district court based its
decision on a review of the checks offered as evidence, as well as the stipulations
concerning the existence of numerous associations bearing the name Bi-Agra. The
Whorton court concluded that the determination of which Bi-Agra Association owned the
checks involved questions of fact. Consequently, this court concluded that "the trial court,
correct or not, did resolve factual issues in the instant case." Whorton, 225 Kan. at 254.
This was significant because "where a motion to dismiss challenges the sufficiency of the
evidence, the proper motion should be for a judgment of acquittal." Whorton, 225 Kan. at
254 (citing United States v. Ambers, 416 F.2d 942 [5th Cir. 1969], cert. denied 396 U.S.
1039 [1970]).
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Jeopardy

The second aspect of the definition of a judgment of acquittal—the requirement
that jeopardy has attached—is both substantive and temporal. This requirement is not
clearly stated in K.S.A. 22-3419. Rather, the only temporal reference in K.S.A. 22-3419
indicates the district court may order the entry of judgment of acquittal "after the
evidence on either side is closed." Although this statutory language does not explicitly tie
into the concept of jeopardy, the concept is implied by the temporal reference because
jeopardy protections attach only "when a jury is [i]mpaneled and sworn, or, in a bench
trial, when the judge begins to receive evidence." Martin Linen Supply Co., 430 U.S. at
569; see Serfass v. United States, 420 U.S. 377, 391, 95 S. Ct. 1055, 43 L. Ed. 2d 265
(1975) ("[J]eopardy does not attach until a defendant is 'put to trial before the trier of the
facts.'"); State v. Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989) ("In a jury trial, jeopardy
attaches when a jury is impaneled and sworn"; "[i]n a bench trial, jeopardy attaches when
the first witness is sworn."). Consequently, if the order is entered after the close of one
party's evidence, jeopardy would have attached.

Yet, despite the statutory reference to the close of evidence, in Whorton, the court
determined that an order entered during the testimony of the first trial witness was a
judgment of acquittal. The Whorton court acknowledged the language in K.S.A. 22-3419
but noted that legal commentary on the federal counterpart of this statute, Rule 29(A) of
the Federal Rules of Criminal Procedure, has not placed a narrow construction on such
language:

"'Despite what appears to be the clear language of the rule, judgment of acquittal
may be ordered even before the government has closed its case if the basic facts lead
inescapably to a conclusion that the prosecution must fail regardless of whatever
12

evidence may be introduced.'" Whorton, 225 Kan. at 255 (quoting 2 Wright & Miller,
Federal Practice and Procedure: Criminal § 462, p. 244 [1969]).

Further, the court noted, judgments of acquittal have been rendered in federal
courts before the close of the prosecution's case where the government's opening
statement shows it has no case. Whorton, 225 Kan. at 255 (citing United States v.
Dietrich, 126 F. 676, 677-78 [C.C.D. Neb. 1904] [directed verdict for defendant proper
after government admitted a fact during its opening statement that precluded conviction];
Annot., 75 A.L.R.3d 649 [1977] [power of district court to dismiss prosecution or direct
acquittal on basis of prosecutor's opening statement]). A judgment of acquittal has also
been entered after the defendant was "before a jury for trial" but before opening
statements where basic facts lead to the conclusion the prosecution must fail regardless of
the evidence to be introduced. Whorton, 225 Kan. at 255 (citing United States v.
Weissman, 266 U.S. 377, 45 S. Ct. 135, 69 L. Ed. 334 [1924] [district court found
indictment was invalid because no offense was properly charged; directed verdict granted
before opening statements and introduction of evidence was not appealable]; United
States v. Maryland Cooperative Milk Prod., 145 F. Supp. 151, 152 [D.D.C. 1956]
[granting defendant's motion for acquittal which was brought after opening statements
were made and immediately following the admission into evidence of the "stipulation of
facts" previously agreed upon by counsel]); see Note, Mandamus to Review Judgments of
Acquittal in Federal Courts, 71 Yale L.J. 171, 172-73 (1961) (stating that "judgments of
acquittal have been rendered before the close of the prosecution's case where the
government's opening statement shows that it has no case, or where the government's
own evidence indicates the existence of an iron-clad defense").

Relying on the federal courts' rationale, the Whorton court concluded that the
defendant's motion for judgment of acquittal was timely under the facts despite its
coming before the close of either party's evidence. Whorton, 225 Kan. at 255; cf. City of
Salina v. Amador, 279 Kan. 266, 275-77, 106 P.3d 1139 (2005) (dismissal of charges had
13

been made prior to district court hearing any evidence or swearing any witnesses, so
jeopardy did not attach); Prockish v. City of Stockton, 6 Kan. App. 2d 841, Syl. ¶ 2, 635
P.2d 975 (1981), rev. denied 230 Kan. 819 (1982) ("A motion for judgment of acquittal is
not proper until the close of the prosecution's evidence unless the basic facts of the case
lead to the conclusion that the prosecution must fail regardless of the evidence to be
introduced.").

The Whorton court did not specifically state that jeopardy had to have attached,
but this court clarified that requirement in the subsequent case of Ruden, 245 Kan. 95.
The Ruden court noted that in Whorton the court had recognized the double jeopardy
implications of acquittal, stating that "'a judgment of acquittal, correctly or incorrectly
arrived at, terminates the prosecution, and the double jeopardy clause of the Fifth
Amendment bars further proceedings against the defendant.' [Citations omitted.]" Ruden,
245 Kan. at 99 (quoting Whorton, 225 Kan. at 255). The Whorton court did not need to
focus further on this aspect, however, because jeopardy had clearly attached and the
pivotal aspect was whether the court's ruling was a resolution of factual elements.

In contrast, in Ruden, 245 Kan. at 97, the State was appealing from a pretrial
order, which the district court had labeled as a "judgment of acquittal." On appeal, the
State argued that the district court's action should be classified as a dismissal of the
complaint and, therefore, this court had jurisdiction to consider the appeal under K.S.A.
22-3602(b)(1). This court agreed, despite the district court's characterization of its order
as a judgment of acquittal. At several points in the analysis, the Ruden court emphasized
that the timing was determinative. For example, the court stated:

"A main component of the judgment of acquittal is its prohibition against
subsequent prosecutions for the same offense based upon the Fifth Amendment
protection against double jeopardy. 8A Moore's Federal Practice ¶ 29.08 (2d ed.1989).
The Kansas cases that have allowed a motion for judgment of acquittal to bar an appeal
14

have involved a situation in which the trial has begun and jeopardy has attached." Ruden,
245 Kan. at 99.

Then, in stating its holding, the court succinctly concluded: "Because jeopardy
had not attached, a judgment of acquittal was not appropriate." Ruden, 245 Kan. at 100.

Roberts' Arguments

With this background in mind, we turn to the specifics of Roberts' arguments,
which are: (a) The district court's order of dismissal was the functional equivalent of an
acquittal; (b) the Court of Appeals erred in characterizing the district court's ruling as one
based on legal, rather than factual, determinations; and (c) K.S.A. 21-3108(1)(b) prevents
a subsequent prosecution in this case so the order must be considered a judgment of
acquittal.

a. Equivalent of Acquittal

In the first of these arguments, Roberts suggests that even if jeopardy did not
attach, the district court's order was the "equivalent of acquittal" because the district court
resolved factual questions regarding the chemical makeup of the drug that Roberts
possessed. A similar argument was rejected by the United States Supreme Court in
Serfass, 420 U.S. 377.

In Serfass, the Court considered whether a pretrial motion to dismiss an indictment
was an appealable order. The Court first explained that under 18 U.S.C. § 3731 (1970),
which defined federal appellate jurisdiction in criminal cases, the government had a right
to appeal "so long as further prosecution would not be barred by the Double Jeopardy
Clause." Serfass, 420 U.S. at 387. Hence, the federal statute, see 18 U.S.C. § 3731
(2006), expressly states the limitation that this court has imposed on Kansas appellate
15

jurisdiction through case law. See Crozier, 225 Kan. at 122; Gustin, 212 Kan. at 480.
Using the bright line of whether jeopardy had attached, the Serfass Court held the
government could appeal the order because Serfass had not been put to trial before a trier
of facts. The Court noted Serfass had not waived his right to a jury trial and, at the time
of the motion hearing, the district court did not have jurisdiction to do more than grant or
deny the motion to dismiss; it did not have jurisdiction to determine whether Serfass was
innocent or guilty. Serfass, 420 U.S. at 389.

The Supreme Court then considered Serfass' argument that the ruling was based on
evidentiary facts outside of the indictment and was the "'functional equivalent of an
acquittal on the merits'" and "'constructively jeopardy had attached.'" Serfass, 420 U.S. at
390. The Court explained the argument further, stating:

"The argument is grounded on two basic and interrelated premises. First, petitioner
argues that the Court has admonished against the use of 'technicalities' in interpreting the
Double Jeopardy Clause, and he contends that the normal rule as to the attachment of
jeopardy is merely a presumption which is rebuttable in cases where an analysis of the
respective interests of the Government and the accused indicates that the policies of the
Double Jeopardy Clause would be frustrated by further prosecution. [Citation omitted.]
Second, petitioner maintains that the disposition of his motion to dismiss the indictment
was, in the circumstances of this case, the 'functional equivalent of an acquittal on the
merits,' and he concludes that the policies of the Double Jeopardy Clause would in fact be
frustrated by further prosecution. [Citation omitted.]" Serfass, 420 U.S. at 390.

The Court rejected both premises and the argument, explaining:

"It is true that we have disparaged 'rigid, mechanical' rules in the interpretation of
the Double Jeopardy Clause. [Citation omitted.] However, we also observed in that case
that 'the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to
whether the Double Jeopardy Clause bars retrial.' [Citation omitted.] Implicit in the latter
statement is the premise that the 'constitutional policies underpinning the Fifth
16

Amendment's guarantee' are not implicated before that point in the proceedings at which
'jeopardy attaches.' [Citation omitted.] As we have noted above, the Court has
consistently adhered to the view that jeopardy does not attach until a defendant is 'put to
trial before the trier of the facts, whether the trier be a jury or a judge.' [Citation omitted.]
This is by no means a mere technicality, nor is it a 'rigid, mechanical' rule. It is, of course,
like most legal rules, an attempt to impart content to an abstraction." Serfass, 420 U.S. at
390-91.

The Court further explained that if a motion to dismiss is granted before trial the
defendant is not "'subjected to the hazards of trial and possible conviction'" and an appeal
by the United States would not mean that the prosecutor would have the opportunity "'to
persuade a second trier of fact of the defendant's guilt after having failed with the first.'
[Citations omitted.]" Serfass, 420 U.S. at 391.

According to the Supreme Court, the second premise that the motion to dismiss
was the "'functional equivalent of an acquittal on the merits,' and [Serfass'] conclusion
that the policies of the Double Jeopardy Clause would be frustrated by further
prosecution in his case need not, in light of the conclusion we reach above, long detain
us." Serfass, 420 U.S. at 392. The Court recognized the focus in case law on whether
there was an "'acquittal'" but then stated:

"[T]he language of cases in which we have held that there can be no appeal from, or
further prosecution after, an 'acquittal' cannot be divorced from the procedural context in
which the action so characterized was taken. [Citation omitted.] The word itself has no
talismanic quality for purposes of the Double Jeopardy Clause. Compare United States v.
Oppenheimer, 242 U.S. 85, 88[, 37 S. Ct. 68, 69, 61 L. Ed. 161] (1916), with United
States v. Barber, 219 U.S. 72, 78[, 31 S. Ct. 209, 55 L. Ed. 99] (1911), and United States
v. Goldman, 277 U.S. 229, 236-237[, 48 S. Ct. 486, 72 L. Ed. 862] (1928). In particular,
it has no significance in this context unless jeopardy has once attached and an accused
has been subjected to the risk of conviction." Serfass, 420 U.S. at 392.

17

Finally, the Court distinguished its prior decision in United States v. Brewster, 408
U.S. 501, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972), in which the Court held that "an
appeal does not lie from a decision that rests, not upon the sufficiency of the indictment
alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated
fact or the showing of evidentiary facts outside the indictment, which facts would
constitute a defense on the merits at trial, no appeal is available. [Citation omitted.]"
Brewster, 408 U.S. at 506. Although Brewster supported Serfass' (and Roberts')
argument, the Serfass Court rejected its application, noting that Brewster was based on a
prior version of the federal statute and "was not concerned with the constitutional
question" of whether double jeopardy would bar the appeal. Serfass, 420 U.S. at 393.
Under the applicable statute regarding federal criminal appeals, the Court concluded
jeopardy must also have attached before the State's appeal would be barred. Serfass, 420
U.S. at 393 (accused must suffer jeopardy before suffering double jeopardy).

This conclusion undercuts Roberts' argument, which essentially asserts that
meeting the first prong of the definition of "acquittal" is sufficient to bar an appeal. Like
the revised federal statute applied in Serfass, the Kansas prohibition against the appeal of
a judgment of acquittal is based on double jeopardy considerations. Consequently, the
order must meet the second prong as well or there is no bar to the State's appeal.

That does not mean that the first factor—a determination of the sufficiency of the
evidence—is irrelevant, however. As the Supreme Court reiterated after the Serfass
decision: "[A] defendant is acquitted only when 'the ruling of the judge, whatever its
label, actually represents a resolution [in the defendant's favor], correct or not, of some or
all of the factual elements of the offense charged.'" Scott, 437 U.S. at 97 (quoting Martin
Linen Supply Co., 430 U.S. at 571). Hence, an order entered midtrial—i.e., after jeopardy
has attached—is not a judgment of acquittal if it is not based on a finding that the
evidence is insufficient.

18

b. Characterization as Factual

Even though the order at issue in this appeal was entered before trial, Roberts
dismisses the jeopardy aspect and focuses on whether the district court's order resolved
factual elements. Specifically, Roberts asserts that the Court of Appeals improperly
characterized the district court's order as resolving only an issue of law, rather than
factual issues. Related to this argument, through a notice of additional authority pursuant
to Supreme Court Rule 6.09(b) (2010 Kan. Ct. R. Annot. 48), Roberts points us to
another Court of Appeals' decision, City of Wichita v. Bannon, 42 Kan. App. 2d 196, 209
P.3d 207 (2009), pet. for rev. filed July 20, 2009 (pending), in which he thinks the Court
of Appeals made a similar mischaracterization.

We need not sort through this argument, however, because, regardless of whether
the district court resolved some or all of the factual elements of the offense, jeopardy had
not attached. Roberts' case had been set for jury trial, but the motion was granted before
the trial date. We see no indication in the record on appeal that Roberts had waived his
right to a jury trial and, at the time of the motion hearing, the district court did not have
jurisdiction to do more than grant or deny the motion to dismiss.

c. K.S.A. 21-3108(1)(b)

Finally, Roberts suggests a different conclusion is compelled in Kansas because
the Kansas Legislature has recognized that there can be an acquittal before a trial. He
points to K.S.A. 21-3108(1)(b), which bars trying the case "in a subsequent prosecution"
if a first attempt "[w]as terminated by a final order or judgment, even if entered before
trial, which required a determination inconsistent with any fact necessary to a
conviction." (Emphasis added.)

19

This provision, which is based on the American Law Institute's Model Penal Code
§ 1.09(2) (1985) (adopted May 24, 1962), codifies the principle of res judicata and has its
source in the United States Supreme Court's decision of United States v. Oppenheimer,
242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 (1916); see State v. Lee, 210 Kan. 753, 756, 504
P.2d 202 (1972) (discussing legislative history and noting the subsection "expressly
codifies the principle of res judicata in criminal cases"); Com. v. Stephenson, 82 S.W.3d
876, 885-86 (Ky. 2002) (discussing substantially similar provision and noting source is
Model Penal Code and Oppenheimer). In Oppenheimer, the defendant was reindicted for
the same offense that had been dismissed because the statute of limitations barred the
prosecution. In the second prosecution, the defendant raised the defense of double
jeopardy, and the State countered that the question was an issue of res judicata which
does not apply in criminal cases. The Court agreed with the State that the defendant had
made an argument based on res judicata rather than double jeopardy principles. However,
the Court disagreed with the argument that the doctrine of res judicata does not apply to
criminal proceedings. See Oppenheimer, 242 U.S. at 87-88.

Clearly, the effect of Oppenheimer and K.S.A. 21-3108(1)(b) is to bar a
subsequent prosecution, but that is a different situation from the question of whether
double jeopardy principles would bar the State from challenging a pretrial ruling on
appeal. Roberts does not cite any opinion in which a court has held that the State cannot
appeal from an order that the State seeks to overturn. There is authority that is contrary to
Roberts' position, however.

Specifically, courts in other jurisdictions that have the same statutory provision
have indicated that to avoid the application of res judicata in the subsequent prosecution,
"'a timely amendment of the order of dismissal or an appeal from that order was
required. Upon [the government's] failure to take steps to obtain such relief, the order of
dismissal became final and subsequent litigation was thereby barred.'" (Emphasis added.)
Stephenson, 82 S.W.3d at 885; see also People v. Newell, 83 Ill. App. 3d 133, 137, 403
20

N.E.2d 775 (1980) (noting that even though pretrial order in first prosecution might have
been erroneous, "that issue was not raised in timely appeal" and subsequent prosecution
was barred). In other words, consistent with the doctrine of res judicata, the order of
dismissal would not be final until the opportunity for an appeal had expired or was
exhausted; only then would the order have preclusive effect. See K.S.A. 60-2105 (An
appellate "court shall render such final judgment as it deems that justice requires, or
direct such judgment to be rendered by the court from which the appeal was taken.");
State v. Flores, 283 Kan. 380, 384, 153 P.3d 506 (2007) ("Res judicata requires prior
final judgment on the merits."). Implicitly, these courts recognize a right to appeal the
order of dismissal.

These decisions are consistent with the Serfass holding, i.e., that the right to
appeal is impacted only if jeopardy has attached. It is particularly noteworthy that the
Court in Serfass, as quoted above, cited to Oppenheimer in its analysis. Serfass, 420 U.S.
at 392. Yet, the Court did not suggest that the holding in Oppenheimer prevented the
government's appeal of the order at issue in Serfass. Instead, it cited Oppenheimer for the
proposition that the word "'acquittal'" has no "talismanic quality" and then reiterated that
the critical point is whether jeopardy has attached. Serfass, 420 U.S. at 392.

As a result, we conclude that K.S.A. 21-3108(1)(b) does not preclude the State
from appealing an order of dismissal if the appeal is otherwise statutorily authorized.

In summary, under the facts of this case where an order of dismissal was entered
before trial, meaning before jeopardy had attached, the order was not a judgment of
acquittal and the State's appeal was not barred by the Double Jeopardy Clause.

Judgments of the Court of Appeals and the district court on the issue subject to our
review are affirmed.

21

JAMES A. PATTON, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3,
§ 6(f) of the Kansas Constitution, Judge Patton was appointed to hear case No. 100,233 to
fill the vacancy on the court created by the retirement of Chief Justice Robert E. Davis.