MESCHKE, Justice.
The City of Dickinson appeals from a judgment acquitting Elden A. Kraft of dispensing liquor to a minor in a licensed establishment. We hold that the judgment of acquittal is not appealable, and we dismiss the appeal.
Kraft was charged by the City of Dickinson with violating Section 3-5 of the Dickinson City Code by dispensing alcoholic beverages to a minor and permitting that minor to remain on premises licensed to [442]*442sell alcoholic beverages.1 In opening jury instructions, the trial court instructed that an essential element of the crime to be proved by the City was “[t]hat Elden A. Kraft d/b/a Broadway Bar Company is the license holder of said premises.” At the close of the City’s evidence, Kraft moved for a judgment of acquittal, arguing that the City had failed to prove the crime. The City resisted.
In keeping with NDRCrimP 29(a),2 the trial court said that the City’s pertinent exhibit did not show that Kraft was the licensee on December 7, 1989.
COURT: I would invite you to examine your State’s Exhibit One, consisting of five pages. The second page of which is an application for a license for 1990, dated December 13, 1989, and the tax sheet showing that the taxes were paid on certain real property in 1988 and a receipt showing that Mr. Kraft is licensed from January 1, 1990 to December 31, 1990, which as [sic] approved by the City Commission on December 18, 1989, 11 days after the incident. I want you to point out, Mr. Ficek, where in those documents is there any evidence to establish that Mr. Kraft was the licensee on December 7, 1989.
The City’s attorney argued that this oversight was not substantial and that testimony by Kraft’s son had also referred to Kraft as the licensee. The trial court was not persuaded. The City then moved to reopen its case to produce additional evidence, but Kraft claimed prejudice if the City were to be allowed another attempt to marshal evidence. The trial court entered a judgment of acquittal.
The City appealed. Kraft moved to dismiss the appeal. That motion is disposi-tive.
The City has the same right to appeal that the State has “when the complaint charges the defendant with an act proscribed by city ordinance which is also proscribed by a state statute.” City of Bismarck v. Hoopman, 421 N.W.2d 466, 468 (N.D.1988). See also City of Minot v. Knudson, 184 N.W.2d 58, 62-63 (N.D.1971). Kraft was charged with the same offense as proscribed by NDCC 5-02-06. Compare City of Fargo v. Little Brown Jug, 468 N.W.2d 392 (N.D.1991). Accordingly, the City’s right to appeal is governed by NDCC 29-28-07.3
[443]*443There can be no appeal from a true judgment of acquittal. State v. Flohr, 259 N.W.2d 293 (N.D.1977). The City can, however, appeal from “[a]n order quashing an information or indictment or any count thereof.” NDCC 29-28-07(1). This includes the right to appeal from a dismissal, regardless of its label, that has the same effect as an order quashing an information. State v. Hogie, 424 N.W.2d 630 (N.D.1988). A majority of this court holds that a dismissal based upon legal conclusions, rather than resolution of any factual element of the offense, is equivalent to an order quashing an information, and is therefore appealable by the State. State v. Bettenhausen, 460 N.W.2d 394 (N.D.1990); State v. Thill, 468 N.W.2d 643, 645 (N.D.1991). The propriety of this appeal depends upon whether the trial court reached only legal conclusions or resolved factual elements.
In a criminal case, the State must prove every element of the crime beyond a reasonable doubt. State v. Vogel, 467 N.W.2d 86, 89 (N.D.1991). If the State does not do so, the accused must be acquitted of the charge. Once acquitted, the accused cannot be retried on the same charge without violating the clause prohibiting double jeopardy in the Fifth Amendment of the United States Constitution. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). In this way, the Double Jeopardy Clause also limits the appeala-bility of some final judgments in criminal cases.
The United States Supreme Court holds that the Fifth Amendment guarantee against double jeopardy bars retrial when the evidence is found legally insufficient by an appellate court.
Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal.
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978). (A second trial is barred when a conviction is reversed by an appellate court solely for lack of evidence). The constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also State v. McMorrow, 286 N.W.2d 284 (N.D.1979). In addition, Article I, Section 12 of the North Dakota Constitution commands protection against double jeopardy for the same offense.4
Acquittal by the trial court for lack of evidence also bars retrial, even when that acquittal is based on erroneous eviden-tiary rulings. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). See also Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). Sanabria was recently reaffirmed in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). “[A] ruling[,] that as a matter of law the State’s evidence is insufficient to establish ... factual guilt[,] ... is an acquittal under the Double Jeopardy Clause.” Id. 106 S.Ct. at 1748 (footnote and citations omitted). In this case, the trial court ruled that the City’s evidence was insufficient to establish Kraft’s factual guilt.
The question of what constitutes an acquittal, as distinguished from a dismissal, is not controlled by the trial court’s characterization of the ruling. State v. Melin, 428 N.W.2d 227 (N.D.1988).
Free access — add to your briefcase to read the full text and ask questions with AI
MESCHKE, Justice.
The City of Dickinson appeals from a judgment acquitting Elden A. Kraft of dispensing liquor to a minor in a licensed establishment. We hold that the judgment of acquittal is not appealable, and we dismiss the appeal.
Kraft was charged by the City of Dickinson with violating Section 3-5 of the Dickinson City Code by dispensing alcoholic beverages to a minor and permitting that minor to remain on premises licensed to [442]*442sell alcoholic beverages.1 In opening jury instructions, the trial court instructed that an essential element of the crime to be proved by the City was “[t]hat Elden A. Kraft d/b/a Broadway Bar Company is the license holder of said premises.” At the close of the City’s evidence, Kraft moved for a judgment of acquittal, arguing that the City had failed to prove the crime. The City resisted.
In keeping with NDRCrimP 29(a),2 the trial court said that the City’s pertinent exhibit did not show that Kraft was the licensee on December 7, 1989.
COURT: I would invite you to examine your State’s Exhibit One, consisting of five pages. The second page of which is an application for a license for 1990, dated December 13, 1989, and the tax sheet showing that the taxes were paid on certain real property in 1988 and a receipt showing that Mr. Kraft is licensed from January 1, 1990 to December 31, 1990, which as [sic] approved by the City Commission on December 18, 1989, 11 days after the incident. I want you to point out, Mr. Ficek, where in those documents is there any evidence to establish that Mr. Kraft was the licensee on December 7, 1989.
The City’s attorney argued that this oversight was not substantial and that testimony by Kraft’s son had also referred to Kraft as the licensee. The trial court was not persuaded. The City then moved to reopen its case to produce additional evidence, but Kraft claimed prejudice if the City were to be allowed another attempt to marshal evidence. The trial court entered a judgment of acquittal.
The City appealed. Kraft moved to dismiss the appeal. That motion is disposi-tive.
The City has the same right to appeal that the State has “when the complaint charges the defendant with an act proscribed by city ordinance which is also proscribed by a state statute.” City of Bismarck v. Hoopman, 421 N.W.2d 466, 468 (N.D.1988). See also City of Minot v. Knudson, 184 N.W.2d 58, 62-63 (N.D.1971). Kraft was charged with the same offense as proscribed by NDCC 5-02-06. Compare City of Fargo v. Little Brown Jug, 468 N.W.2d 392 (N.D.1991). Accordingly, the City’s right to appeal is governed by NDCC 29-28-07.3
[443]*443There can be no appeal from a true judgment of acquittal. State v. Flohr, 259 N.W.2d 293 (N.D.1977). The City can, however, appeal from “[a]n order quashing an information or indictment or any count thereof.” NDCC 29-28-07(1). This includes the right to appeal from a dismissal, regardless of its label, that has the same effect as an order quashing an information. State v. Hogie, 424 N.W.2d 630 (N.D.1988). A majority of this court holds that a dismissal based upon legal conclusions, rather than resolution of any factual element of the offense, is equivalent to an order quashing an information, and is therefore appealable by the State. State v. Bettenhausen, 460 N.W.2d 394 (N.D.1990); State v. Thill, 468 N.W.2d 643, 645 (N.D.1991). The propriety of this appeal depends upon whether the trial court reached only legal conclusions or resolved factual elements.
In a criminal case, the State must prove every element of the crime beyond a reasonable doubt. State v. Vogel, 467 N.W.2d 86, 89 (N.D.1991). If the State does not do so, the accused must be acquitted of the charge. Once acquitted, the accused cannot be retried on the same charge without violating the clause prohibiting double jeopardy in the Fifth Amendment of the United States Constitution. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). In this way, the Double Jeopardy Clause also limits the appeala-bility of some final judgments in criminal cases.
The United States Supreme Court holds that the Fifth Amendment guarantee against double jeopardy bars retrial when the evidence is found legally insufficient by an appellate court.
Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal.
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978). (A second trial is barred when a conviction is reversed by an appellate court solely for lack of evidence). The constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also State v. McMorrow, 286 N.W.2d 284 (N.D.1979). In addition, Article I, Section 12 of the North Dakota Constitution commands protection against double jeopardy for the same offense.4
Acquittal by the trial court for lack of evidence also bars retrial, even when that acquittal is based on erroneous eviden-tiary rulings. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). See also Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). Sanabria was recently reaffirmed in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). “[A] ruling[,] that as a matter of law the State’s evidence is insufficient to establish ... factual guilt[,] ... is an acquittal under the Double Jeopardy Clause.” Id. 106 S.Ct. at 1748 (footnote and citations omitted). In this case, the trial court ruled that the City’s evidence was insufficient to establish Kraft’s factual guilt.
The question of what constitutes an acquittal, as distinguished from a dismissal, is not controlled by the trial court’s characterization of the ruling. State v. Melin, 428 N.W.2d 227 (N.D.1988). “Rather, one must look at the substance of the judge’s ruling, whatever its label, and determine whether it actually represents a [444]*444resolution of some or all of the factual elements of the offense charged.” Melin, 428 N.W.2d at 229 (quoting Flohr, 259 N.W.2d at 295, which emphasizes language from Martin Linen Supply Co., 97 S.Ct. at 1354-55). Thus, we assess the substance of the trial court’s ruling to determine whether it actually represents a resolution of a factual element of the charged offense.
The trial court’s order for judgment of acquittal in this case recites that the trial court
determined that the City of Dickinson had failed to prove beyond a reasonable doubt that the Defendant, Elden A. Kraft, was the license holder of the premises known as the Broadway Bar on the date of the alleged violation and as a consequence thereof the City of Dickinson had failed to prove the first element of the offense of dispensing alcoholic beverages to a person under twenty-one (21) years of age, or permitting such person to remain on the licensed premises while alcoholic beverages were being sold.
“Legal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight.” Sanabria, 98 S.Ct. at 2179 (citations omitted). The trial court, as it should, apparently assumed the truth of all information in the City’s relevant exhibit, but found it deficient. Even though true, that information did not prove that Kraft was the licensee on December 7, 1989, the date of the charged crime.
NDRCrimP 29(a) authorizes a judgment of acquittal “if the evidence is insufficient to sustain a conviction of such offense....” Since the trial court’s ruling resolved a factual element of the charged crime in favor of Kraft, the ruling was properly designated a judgment of acquittal. Neither NDCC 29-28-07 nor the Double Jeopardy Clause permits the prosecution to appeal a true judgment of acquittal. Therefore, we dismiss this appeal.
LEVINE and GIERKE, JJ., concur.