State v. Rahaman, 202 N.C. App. 36 (Jan. 19, 2010)

The trial court did not err by denying the defendant’s pre-trial motion to dismiss a charge of felonious possession of stolen property on double jeopardy grounds. Although the defendant was indicted for felony possession of stolen property (a Toyota truck) under G.S. 14-71.1, at the first trial, the jury was instructed on felony possession of a stolen motor vehicle under G.S. 20-106. The defendant was found guilty and he successfully appealed on grounds that the trial judge erred by instructing the jury on an offense not charged in the indictment. When the defendant was retried for felony possession of stolen property, he moved to dismiss on double jeopardy grounds, arguing that by failing to instruct on felony possession of stolen property, the trial court effectively dismissed that charge and that dismissal constituted an acquittal. Relying on prior case law, the court agreed that the trial court effectively dismissed the crime of possession of stolen property. However, the court went on to hold that this effective dismissal did not amount to an acquittal for double jeopardy purposes because it was not a dismissal for insufficient evidence.