State v. Kiselev, 241 N.C. App. 144 (May. 19, 2015)

The State had no right to appeal the trial court’s order granting the defendant’s motion to dismiss for insufficient evidence, made after the close of all evidence where the trial court erred by taking the defendant’s motion under advisement and failing to rule until after the jury returned its verdict. Under G.S. 15A-1227(c), when a defendant moves to dismiss based on insufficient evidence, the trial court must rule on the motion “before the trial may proceed.” Here, after the defendant moved to dismiss the trial court determined that it needed to review the transcript of an officer’s trial testimony before ruling. While waiting for the court reporter to prepare the transcript, the trial court allowed the jury to begin deliberations. Shortly after the jury returned a guilty verdict, the court reporter completed the transcript and the trial court reviewed it. The trial court then granted the motion to dismiss, explaining that the transcript showed the State had not met its burden of proof. The trial court added that it considered its ruling as one made “at the close of all the evidence.” The State appealed. While double jeopardy prevents the State from appealing the grant of a motion to dismiss for insufficient evidence if it comes before the jury verdict, the State generally can appeal that ruling if it comes after the verdict (because, the court explained, if the State prevails, the trial court on remand can enter judgment consistent with the jury verdict without subjecting the defendant to a second trial). Here, the trial court’s violation of the statute prejudiced the defendant; had the trial court ruled at the proper time, no appeal would have been allowed. The court determined that the proper remedy was to preclude the State’s appeal.

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