                                                                             Michigan Supreme Court
                                                                                   Lansing, Michigan
                                                      Chief Justice:           Justices:



Opinion                                               Robert P. Young, Jr. Michael F. Cavanagh
                                                                           Marilyn Kelly
                                                                           Stephen J. Markman
                                                                           Diane M. Hathaway
                                                                           Mary Beth Kelly
                                                                           Brian K. Zahra

                                                                       FILED MARCH 26, 2012

                            STATE OF MICHIGAN

                                    SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

 v                                                             No. 141381

 LAMAR EVANS,

              Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 ZAHRA, J.


       This case presents the question whether the Double Jeopardy Clauses of the state

 and federal constitutions bar defendant’s retrial. Defendant was accused of burning a

 vacant house and charged on that basis with burning other real property in violation of

 MCL 750.73. There is no dispute that the trial court wrongly added an extraneous

 element to the statute under which defendant was charged. Specifically, the trial court

 ruled that the prosecution was required to present proof that the burned house was not a

 dwelling, which is not a required element of MCL 750.73. As a result of the trial court’s
erroneous addition of this extraneous element to the charged offense, it granted

defendant’s motion for a directed verdict and entered an order of acquittal, dismissing the

case. We hold that when a trial court grants a defendant’s motion for a directed verdict

on the basis of an error of law that did not resolve any factual element of the charged

offense, the trial court’s ruling does not constitute an acquittal for the purposes of double

jeopardy and retrial is therefore not barred. Accordingly, because the trial court’s actions

did not constitute an acquittal for the purposes of double jeopardy, we affirm the

judgment of the Court of Appeals and remand the case for further proceedings not

inconsistent with this opinion.

                       I. FACTS AND PROCEDURAL HISTORY

        Defendant, Lamar Evans, was charged with burning other real property, MCL

750.73,1 for starting a fire in a vacant house. At trial, two Detroit police officers testified

that while on routine patrol on September 22, 2008, they observed a house on fire at 9608

Meyers Street and investigated. After hearing an explosion at the burning house, the

officers observed defendant running away from the side of the house with a gasoline can.

Officer Jermaine Owens got out of the patrol car and told defendant to stop. When

defendant continued to run, Officer Owens chased defendant on foot. Defendant dropped

the gasoline can during the chase, and Officer Owens caught defendant after he tripped

1
    MCL 750.73 provides:

               Any person who wilfully or maliciously burns any building or other
        real property, or the contents thereof, other than those specified in the next
        preceding section of this chapter, the property of himself or another, shall
        be guilty of a felony, punishable by imprisonment in the state prison for not
        more than 10 years.



                                              2
and fell. Officer Cyril Davis, who had initially joined the chase on foot, returned to the

patrol car and drove it to where Officer Owens had detained defendant. The officers

testified that defendant told them he had made a mistake and burned down the house.

        An arson investigator from the Detroit Fire Department, Lieutenant Christopher

Smith, determined that the burn patterns in the house indicated the use of ignitable liquid

accelerants. Further testing showed that gasoline had been poured in the kitchen, dining

room, and a bedroom. As a result, Smith concluded that the fire was arson. No one was

living in the house at the time of the fire, and the house lacked gas, electricity, and water

service. The homeowner testified that he was in the process of purchasing the house,

which needed repairs, and that he and his family had begun moving their belongings into

the house.

        Upon the close of the prosecution’s proofs, defense counsel moved for a directed

verdict under MCR 6.419(A),2 arguing that the prosecution had failed to prove that the

burned building was not a dwelling house.          Defense counsel argued that the jury

instructions indicated that a necessary element of the burning of other real property is that

the building was not a dwelling, while the prosecution’s evidence reflected only that it


2
    MCR 6.419(A) provides:

               After the prosecutor has rested the prosecution’s case-in-chief and
        before the defendant presents proofs, the court on its own initiative may, or
        on the defendant’s motion must, direct a verdict of acquittal on any charged
        offense as to which the evidence is insufficient to support conviction. The
        court may not reserve decision on the defendant’s motion. If the
        defendant’s motion is made after the defendant presents proofs, the court
        may reserve decision on the motion, submit the case to the jury, and decide
        the motion before or after the jury has completed its deliberations.



                                             3
was a dwelling. The prosecutor argued that nothing in MCL 750.73 required proof that

the building was not a dwelling. The prosecutor also argued that it was unnecessary to

read the instructions for the element that the building was not a dwelling and that the jury

instructions are only a guide. The trial court then made the following ruling:

              The Court: The Court does not have an option of not reading all of
       the required elements in a jury instruction, and there are no optional
       elements in [CJI2d] 31.3. All of them are required. And the instructions are
       not a guide. They are what is required by law.[3]

             Looking at the commentary, it refers to a distinction between
       [CJI2d] 31.2 and 31.3. [CJI2d] 31.2 is the instruction that is required for
       burning [a] dwelling house.

              The commentary, speaking of CJI 2nd 31.1 [sic, 31.3], Burning
       Other Real Property, the commentary: “This offense is similar to the one
       described in CJI 2nd 31.2, except that an essential element is that the
       structure burned is not”—which is in italicized writing print—“a dwelling
       house.” And then it cites People v Antonelli, A-n-t-o-n-e-l-l-i, 64 Mich
       App 620, 238 NW 2nd 363 [1975], and notes that it was reversed on other
       grounds, and gives the citation as 66 Mich App 138, 238 NW 2nd 551
       (1975).

              And the commentary goes on to say: “As the Court explained on
       rehearing, common law arson required that the building be a dwelling. In
       creating the less serious crime of burning buildings other than dwellings,



3
  Contrary to the assertion of the trial court, the Michigan Criminal Jury Instructions are
not binding on trial courts. These instructions are offered merely to assist a trial court in
executing its duty to instruct on the law. See People v Petrella, 424 Mich 221, 277; 380
NW2d 11 (1985). As we will discuss, the trial court ignored a use note in the instructions
indicating that it was not appropriate to require proof that the building was not a dwelling
unless instructing on the crime of burning other property as a lesser included offense of
burning a building. Notwithstanding its failure to properly apply the use note, when there
is the potential for inconsistency between a proposed instruction and the applicable law,
the trial court had not only the right, but the obligation to reject or modify the instruction
to bring it into conformity with the law.



                                              4
the legislature simply eliminated the element of habitation. Other real
property is all real property not included in MCL 750.72.”

       And the People in this case have relied on MCL 750.73, which
specifically says it cannot be a dwelling.

         [Prosecutor]: Judge, could I have a moment to go upstairs and pull
the statute and make sure that the statute addressed that. Because my
understanding of the law is that it doesn’t matter whether it’s a dwelling or
not, it just has to be a structure. And that’s the reason for the—

       The Court: Other than a house, because the legislature has imposed a
higher penalty for one burning a house.

       [MCL] 750.73 reads: “Burning of Other Real Property – Any person
who willfully or maliciously burns any building or other real property, or
the contents thereof, other than those specified in the next preceding section
of this chapter, the property of himself or another, shall be guilty of a
felony . . . [.]” I won’t give the term of punishment.

       And it says: “Other than those specified in the next preceding.” Isn’t
preceding before? The next preceding section of this chapter would be
[MCL] 750.72. [MCL] 750.72 is entitled “Burning Dwelling House,” and
reads: “Any person who willfully or maliciously burns any dwelling house,
either occupied or unoccupied, or the contents thereof, whether owned by
him or another, or any building within the curtilage of such dwelling house,
or the contents thereof, shall be guilty of a felony.” I will not read the term
of punishment, but it is twice that which is specified in [MCL] 750.73.

      So reading the language of [MCL] 750.73, which refers back to
[MCL] 750.72, a dwelling house, either occupied or unoccupied, is
excluded by law.

      [Prosecutor]: Judge, may I have a moment to go upstairs and consult
with my supervisors?

       The Court: You can consult with them when you tell them I’ve
granted the motion.

       [Defense Counsel]: Thank you, Judge.

       The Court: As a matter of law.




                                      5
                The testimony was this was a dwelling house, paid for for [sic] forty-
         some-odd thousand dollars. That the folks had moved some stuff into it,
         even though it doesn’t matter.

                Motion granted.

         The prosecution appealed, and in an authored opinion, the Court of Appeals

reversed the trial court’s order granting defendant’s motion for a directed verdict and

remanded for further proceedings.4 The panel stated that it was undisputed that the trial

court had erred by concluding that the prosecution was required to prove that the burned

building was not a dwelling to convict defendant of burning other real property.5 The

panel took note of this Court’s statement in People v Nix, 453 Mich 619; 556 NW2d 866

(1996), that retrial is barred when the trial court grants a directed verdict of acquittal even

when the trial court is “‘wrong with respect to whether a particular factor is an element of

the charged offense.’”6 Nonetheless, the panel characterized that statement as dicta

because “the majority in Nix . . . acknowledg[ed] that it was unclear whether the situation

that concerned the dissent, that dismissal of the case was premised on the prosecution’s

failure to establish a nonelement of an offense, had even occurred.”7

         The panel then considered the dissenting opinion in Nix, finding it persuasive to

support its holding that “an actual acquittal occurs, for double jeopardy purposes, ‘only

when the trial court’s action, whatever its form, is a resolution in the defendant’s favor,


4
    People v Evans, 288 Mich App 410, 411; 794 NW2d 848 (2010).
5
    Id. at 416-417.
6
    Evans, 288 Mich App at 418, quoting Nix, 453 Mich at 628.
7
    Evans, 288 Mich App at 419.



                                              6
correct or not, of a factual element necessary for a criminal conviction.’”8 Applying this

holding, the panel concluded that double-jeopardy principles did not bar retrial because

the trial court had not resolved a factual element necessary to establish a conviction.9

Rather, the trial court had based its directed verdict solely on the prosecution’s failure to

present any evidence establishing that the burned building was not a dwelling, which was

not an element of the charged offense.10

           Defendant applied for leave to appeal in this Court, and we granted leave to

address “whether [defendant’s] retrial is barred under the double jeopardy clauses of the

state and federal constitutions where the trial court’s grant of defendant’s motion for a

directed verdict was based on an error of law and did not determine any actual element of

the charged offense.”11

                                II. STANDARD OF REVIEW

           Defendant’s claim that the double-jeopardy provisions of the United States and

Michigan Constitutions bar his retrial is reviewed de novo.12




8
    Id. at 421-422, quoting Nix, 453 Mich at 634-635 (BOYLE, J., dissenting).
9
    Evans, 288 Mich App at 423.
10
     Id.
11
     People v Evans, 488 Mich 924 (2010).
12
     People v Szalma, 487 Mich 708, 715; 790 NW2d 662 (2010).



                                              7
                                     III. ANALYSIS

         The United States and Michigan Constitutions protect a person from being twice

placed in jeopardy for the same offense13 in order “to prevent the state from making

repeated attempts at convicting an individual for an alleged crime.”14 “[T]he double

jeopardy prohibition ‘is not against being twice punished, but against being twice put in

jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at

the first trial.’”15 In addition, this prohibition provides related protections against a

second prosecution for the same offense after acquittal, second prosecution for the same

offense after conviction, and multiple punishments for the same offense.16 The protection

against a second prosecution for the same offense after an acquittal is at issue here.17 In

13
  US Const, Am V (protecting a criminal defendant from “be[ing] subject for the same
offence to be twice put in jeopardy of life or limb”); Const 1963, art 1, § 15 (“No person
shall be subject for the same offense to be twice put in jeopardy.”). The Michigan
Constitution’s double-jeopardy provision is construed consistently with the Double
Jeopardy Clause in the Fifth Amendment of the United States Constitution. Szalma, 487
Mich at 716.
14
  People v Torres, 452 Mich 43, 63; 549 NW2d 540 (1996), citing People v Dawson,
431 Mich 234, 250; 427 NW2d 886 (1988).
15
  Szalma, 487 Mich at 717, quoting Ball v United States, 163 US 662, 669; 16 S Ct 1192;
41 L Ed 300 (1896); see also United States v Martin Linen Supply Co, 430 US 564, 571;
97 S Ct 1349; 51 L Ed 2d 642 (1977) (characterizing this statement as “[p]erhaps the
most fundamental rule in the history of double jeopardy jurisprudence”).
16
     People v Nutt, 469 Mich 565, 574-575; 677 NW2d 1 (2004).
17
   In Torres, 452 Mich at 64, and Dawson, 431 Mich at 251, this Court quoted the oft
cited rationale behind double-jeopardy protections from Green v United States, 355 US
184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), which stated:

              [T]he State with all its resources and power should not be allowed to
         make repeated attempts to convict an individual for an alleged offense,


                                             8
considering whether retrying defendant would violate this protection, we must examine

whether the trial court’s ruling constituted an acquittal for the purposes of double

jeopardy.

           The United States Supreme Court set forth the standard for what constitutes an

acquittal for the purposes of double jeopardy in United States v Martin Linen Supply Co

430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977). The Court considered the effect

of a verdict of acquittal entered pursuant to Rule 29(c) of the Federal Rules of Criminal

Procedure once the jury had been discharged after being unable to reach a verdict.18 It

held that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s

action.”19 Rather, an acquittal for the purposes of double jeopardy is defined as a “ruling

of the judge, whatever its label, [that] actually represents a resolution, correct or not, of

some or all of the factual elements of the offense charged.”20 Applying this definition,

the Court concluded that the trial court’s ruling constituted an acquittal for the purposes




           thereby subjecting him to embarrassment, expense and ordeal and
           compelling him to live in a continuing state of anxiety and insecurity, as
           well as enhancing the possibility that even though innocent he may be
           found guilty.
18
   Martin Linen, 430 US at 565-567. The standard for granting a motion for acquittal is
set forth in the subrule governing acquittal motions made before a case is submitted to a
jury, FR Crim P 29(a), which authorized a judgment of acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.”
19
     Martin Linen, 430 US at 571.
20
     Id.



                                               9
of double jeopardy because the trial court had evaluated all of the prosecution’s evidence

and determined that it was insufficient to sustain a conviction.21

         Further, an acquittal, defined in Martin Linen as a resolution of the elements of the

charged offense, “remains a bar to retrial even if it is ‘based upon an egregiously

erroneous foundation.’”22 Consistently with the idea that an acquittal can occur in some

circumstances when the trial court errs, the United States Supreme Court has determined

“that an acquittal is final even if it is based on an erroneous evidentiary ruling that

precluded the prosecution from introducing evidence that would have been sufficient to

convict the defendant.”23

         As noted in People v Szalma, the United States Supreme Court has not directly

considered the related question at issue here regarding whether a trial court’s acquittal on

a criminal charge based on insufficient evidence bars retrial if the trial court erroneously

added an extraneous element to the charge.24 In reaching the conclusion that the United

States Supreme Court has not directly addressed this issue, we believe that Szalma

persuasively distinguished the relevant decisions from that Court: Arizona v Rumsey, 467


21
   The Court pointed out that “[i]n entering the judgments of acquittal, the [trial] court
also recorded its view that ‘the Government has failed to prove the material allegations
beyond a reasonable doubt’ and that ‘defendant should be found not guilty.’” Id. at 572
(citation and quotation marks omitted).
22
  Szalma, 487 Mich at 717, quoting Fong Foo v United States, 369 US 141, 143; 82 S Ct
671; 7 L Ed 2d 629 (1962).
23
  Szalma, 487 Mich at 717-718, citing Sanabria v United States, 437 US 54, 68-69; 98 S
Ct 2170; 57 L Ed 2d 43 (1978) (emphasis omitted).
24
     Szalma, 487 Mich at 718.



                                              10
US 203; 104 S Ct 2305; 81 L Ed 2d 164 (1984), Smalis v Pennsylvania, 476 US 140; 106

S Ct 1745; 90 L Ed 2d 116 (1986), and Smith v Massachusetts, 543 US 462; 125 S Ct

1129; 160 L Ed 2d 914 (2005).25

         In Rumsey, the trial court considered whether there was evidence of the statutory

aggravating factors that permit a jury to decide whether the death penalty is warranted.

The aggravating factor at issue was whether a murder occurred “‘as consideration for the

receipt, or in expectation of the receipt, of anything of pecuniary value.’”26 As Szalma

explained, the trial court had “erroneously ruled that this aggravating circumstance only

involved murders for hire, rather than any murder occurring during the course of a

robbery, as the Arizona Supreme Court had interpreted the statute.”27 The United States

Supreme Court concluded “that the trial court’s decision operated as a verdict on whether

defendant was eligible for the death penalty, and that therefore, defendant could not

subsequently be placed in jeopardy of death for the same offense, notwithstanding the

trial court’s ‘misconstruction of the statute defining the pecuniary gain aggravating

circumstance.’”28

         Szalma also addressed Smalis, in which the United States Supreme Court

considered “whether a trial court’s granting of a ‘demurrer’ within the commonwealth of

Pennsylvania’s rules of criminal procedure involved an acquittal for double jeopardy

25
     Id. at 718 n 21.
26
     Id. at 205, quoting Ariz Rev Stat Ann 13-703(F)(5).
27
     Szalma, 487 Mich at 719 n 21.
28
     Id., quoting Rumsey, 467 US at 211.



                                             11
purposes.”29 The Pennsylvania Supreme Court had held that it was not, reasoning that in

deciding whether to grant a demurrer, the trial court was not required to determine a

defendant’s guilt, but only “whether the evidence, if credited by the jury, [was] legally

sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable

doubt.”30      The United States Supreme Court reversed, holding that such a ruling

constituted an acquittal for double-jeopardy purposes despite “an alleged error that the

trial court committed in interpreting the ‘recklessness’ element of Pennsylvania’s third-

degree murder statute.”31

          In Smith, the trial court granted an acquittal on a firearm charge on the basis of its

determination that there was no evidence for the element included in the statute

governing unlawful possession of a firearm that the barrel length of the gun possessed

was less than 16 inches.32 After trial continued on the remaining charges, the trial court

reversed its ruling when the prosecutor identified precedent under which the victim’s

testimony about the kind of gun sufficed to establish that the barrel was shorter than 16

inches.33 Despite the trial court’s initial error regarding what evidence could prove the

barrel-length element, the United States Supreme Court held that this initial ruling “meets

the definition of acquittal that our double-jeopardy cases have consistently used: It

29
     Szalma, 487 Mich at 719 n 21, citing Smalis, 476 US 140.
30
     Smalis, 476 US at 143 (citation omitted).
31
     Szalma, 487 Mich at 719 n 21, citing Smalis, 476 US at 144 n 7.
32
     Smith, 543 US at 464-465.
33
     Id. at 465.



                                                 12
‘actually represents a resolution, correct or not, of some or all of the factual elements of

the offense charged.’”34

         Reviewing Rumsey, Smalis, and Smith, we agree with the reasoning in Szalma that

each of these cases involves evidentiary errors regarding the proof needed to establish a

factual element of the respective crimes at issue.35 Specifically, in Rumsey, the trial

court’s error concerned “not whether a particular aggravating circumstance [i.e., element]

existed to allow a jury to impose a death penalty for first-degree murder, but how the

prosecutor must prove the occurrence of that circumstance in a particular case.”36

Similarly, in Smalis, the trial court’s alleged error concerned how to prove the

recklessness element, not whether the recklessness element existed.37 Additionally, in

Smith, the trial court’s error regarded “not whether a particular element to the crime” of

unlawful possession of a firearm “existed, but rather what evidence could prove that

element.”38

         Following Martin Linen, these decisions establish that when a trial court makes an

error regarding the sufficiency of the evidence to satisfy a factual element or elements of

the charged offense, that resolution nonetheless constitutes an acquittal for the purposes

of double jeopardy. As we discuss, the principles behind the prohibition against double

34
     Id. at 468, quoting Martin Linen, 430 US at 571.
35
     Szalma, 487 Mich at 718 n 21.
36
     Id. at 719 n 21.
37
     See id.
38
     Id. at 718 n 21.



                                              13
jeopardy and the definition of acquittal set forth in Martin Linen support the proposition

that a constitutionally meaningful difference exists between this case, in which the trial

court identified an extraneous element and dismissed the case solely on that basis, and

Rumsey, Smalis, and Smith, in which the trial courts made evidentiary errors regarding

how to prove the governing law. Accordingly, these decisions do not implicate the case

at hand because the trial court’s error here resulted in a dismissal without a resolution

regarding the sufficiency of the factual elements of the charged offense.39

         Although the United States Supreme Court has not directly considered the

question presented here, this Court has dealt with this issue before in Nix and Szalma.40

Nix considered, for the purposes of double jeopardy, the effect of the trial court’s ruling

that the defendant “could not be convicted of either [first-degree premeditated murder or

first-degree felony-murder] as a matter of law” because the defendant “‘owed no legal

duty to the victim . . . .’”41 In responding to the dissent, Nix stated:


39
   We admit that, as in this case, the “acquittals” in Rumsey, Smalis, and Smith were
based on the prosecution’s failure to prove something that the law did not actually require
it to prove. Acknowledging this similarity does not change the analysis, however,
because the key distinction between those cases and the instant appeal remains: the trial
courts in Rumsey, Smalis, and Smith resolved one of the factual elements of the crime
charged, while the trial court in this case added an element and then found it unsupported
by evidence in the record.
40
     See Szalma, 487 Mich at 718.
41
   Nix, 453 Mich at 622. The victim in Nix died after the defendant’s boyfriend
kidnapped the victim and locked her in her own trunk. Id. at 621. Specifically, “[t]he
victim died six days later of dehydration and methanol poisoning, before which time, the
prosecution alleged, the defendant was told of the victim’s screams coming from the
trunk.” Szalma, 487 Mich at 720 n 23, citing Nix, 453 Mich at 630.



                                              14
                 The dissent appears to read the Martin Linen standard as if the
         phrase “correct or not” refers to the factual truth of the prosecution’s
         evidence, a determination completely outside the trial court’s purview in a
         jury trial when considering a defendant’s motion for directed verdict.
         When ruling on a motion for directed verdict, a trial court must, as this trial
         court did, view the prosecution’s evidence in the light most favorable to the
         prosecution. Accordingly, the trial court cannot make an erroneous factual
         resolution. The phrase “correct or not” refers to all aspects of the trial
         court’s ultimate legal decision, including even cases where the trial court is
         factually wrong with respect to whether a particular factor is an element of
         the charged offense. As discussed below, however, it is not clear that this
         situation even exists in the case at bar.[42]

These statements do not control the outcome here because they are nonbinding obiter

dicta.43    The quotation from Nix explicitly stated that it was “not clear that this

situation”—i.e., one in which “the trial court [was] factually wrong with respect to

whether a particular factor is an element of the charged offense”—had even occurred.”44

Rather, Nix reflected the conclusion that the trial court had not erred on its view of what

made up the essential elements.45 Consequently, the quoted observations regarding the


42
     Nix, 453 Mich at 628.
43
  “Obiter dicta are not binding precedent. Instead, they are statements that are
unnecessary to determine the case at hand and, thus, lack the force of an adjudication.”
People v Peltola, 489 Mich 174, 190 n 32; 803 NW2d 140 (2011) (citation and quotation
marks omitted).
44
     Nix, 453 Mich at 628.
45
   Id. at 631. Specifically, the majority asserted that “the dissent’s focus on the fact that
‘duty’ is not a specifically enumerated element of kidnapping is not significant and, under
the actual facts presented here, a distinction without a difference.” Id. In the majority’s
view, the prosecution’s case was entirely predicated on the theory that the defendant,
after allegedly learning that the victim was in the trunk, “became complicit in the
criminal endeavor when she failed to act to free or otherwise aid the victim.” Id. This
theory necessarily included the idea that the defendant “had a duty to act in some way[.]”
Id. Thus, the majority took the view that the trial court had not erred in its view


                                               15
definition of acquittal were unnecessary to determine the outcome in Nix and do not

compel a result in this case.

          Further, Szalma does not compel treating the pertinent statements in Nix as

controlling. Szalma discussed Nix when considering whether a trial court’s erroneous

legal analysis regarding the sufficiency of the evidence to support a conviction of first-

degree criminal sexual conduct constituted an acquittal for the purposes of double

jeopardy.46 Specifically, the trial court in Szalma granted the defendant’s motion for a

directed verdict after erroneously ruling that the fact-finder had to conclude that the

defendant committed the assault for a sexual purpose.47

          We pointed out in Szalma that Nix barred a retrial of the defendant because, under

Nix, “an acquittal retains its finality for double jeopardy purposes even when ‘the trial

court is factually wrong with respect to whether a particular factor is an element of the

charged offense.’”48      We refused to address the prosecution’s argument regarding

whether Nix was correctly decided because the prosecutor at trial had conceded the

underlying erroneous statement of the elements.49 As a result, we reversed the Court of

Appeals’ judgment and reinstated the trial court’s directed verdict of acquittal.50

regarding the defendant’s duty because proving the defendant’s duty was necessary to
show the actus reus, which is an essential element of every crime.
46
     See Szalma, 487 Mich at 709-710, 720, 722, 725-726.
47
     Id. at 722-723.
48
     Id. at 726, quoting Nix, 453 Mich at 628.
49
     Szalma, 487 Mich at 725.
50
     Id. at 727.



                                                 16
      Szalma does not control the instant case because, here, the prosecutor did not

concede the underlying legal error at trial. Rather, the prosecutor argued that the charged

offense did not include the element that the building was not a dwelling. Accordingly,

the prosecution’s argument is properly before us. In addition, because we refused in

Szalma to permit the prosecutor to harbor error at trial and then use that error as an

appellate parachute, we could not properly reach the application of Nix.           In fully

considering Nix now, we will not ignore the Nix majority’s conclusion that it was not

clear that the situation bringing about its double-jeopardy discussion had even occurred.

      In making its ruling in the instant case, the trial court acted under MCR

6.419(A),51 granting defendant’s motion for a directed verdict because the prosecution

had failed to provide evidence that the burned house was not a dwelling. The trial court

undisputedly misapprehended CJI2d 31.352 in its legally erroneous analysis that added an


51
  Pursuant to MCR 6.419(A), after the close of the prosecution’s case-in-chief, the court
“may . . . direct a verdict of acquittal on any charged offense as to which the evidence is
insufficient to support conviction.”
52
  CJI2d 31.3, Burning Other Real Property, provided before its amendment in September
2009:

             (1) [The defendant is charged with the crime of / You may also
      consider the lesser charge of] burning a building or any of its contents. To
      prove this charge, the prosecutor must prove each of the following elements
      beyond a reasonable doubt:

              (2) First, that the defendant burned [describe property alleged]. The
      term “burn” in this case means setting fire to or doing anything that results
      in the starting of a fire, or helping or persuading someone else to set a fire.
      If any part of the [describe property] is burned, [no matter how small,] that
      is all that is necessary to count as a burning; the property does not have to
      be completely destroyed. [The (describe property) is not burned if it is


                                            17
extraneous element to the charged offense.53 The trial court’s confusion apparently

stemmed from its reliance on a jury instruction read when the crime of burning other real

property is charged as a lesser included offense of the crime of burning a dwelling.54 The



         merely blackened by smoke, but it is burned if it is charred so that any part
         of it is destroyed.]

                 (3) Second, that the property that was burned was a building or any
         of its contents. [It does not matter whether the defendant owned or used the
         building.]

                 (4) Third, that when the defendant burned the building or its
         contents, [he / she] intended to burn the building or contents or
         intentionally committed an act that created a very high risk of burning the
         building or contents and that, while committing the act, the defendant knew
         of that risk and disregarded it.

                [(5) Fourth, that the building was not a dwelling house. A dwelling
         house is a structure that is actually being lived in or that could reasonably
         be presumed to be capable of being lived in at the time of the fire. (A
         business that is located very close to and used in connection with a
         dwelling may be considered to be a dwelling.)]

A use note indicated that ¶ (5) “should be used when instructing on the crime as a lesser
included offense of burning a building.” An amendment to the instruction in September
2009 removed ¶ (5) and the use note.
53
  The elements of burning of other real property, MCL 750.73, are “(1) the burning of
any building or other real property, or the contents thereof, and (2) that the fire was
willfully or maliciously set.” People v Greenwood, 87 Mich App 509, 514 n 1; 274
NW2d 832 (1978).
54
     MCL 750.72, which prohibits the burning of a dwelling, provides:

                Any person who wilfully or maliciously burns any dwelling house,
         either occupied or unoccupied, or the contents thereof, whether owned by
         himself or another, or any building within the curtilage of such dwelling
         house, or the contents thereof, shall be guilty of a felony, punishable by
         imprisonment in the state prison not more than 20 years.



                                              18
panel in People v Antonelli (On Rehearing) rightly stated, however, that “[t]he necessary

elements to prove either offense are the same, except to prove the greater it must be

shown that the building is a dwelling; to prove the lesser it is not necessary to prove that

the building is not a dwelling.”55 Thus, the trial court wrongly determined that showing

that the burned building was not a dwelling is an element of burning other real property.

         We agree with the Court of Appeals that defendant’s retrial is not barred because

the trial court’s ruling dismissing the case did not constitute an acquittal for the purposes

of double jeopardy. “[T]he trial court’s characterization of its ruling is not dispositive,

and what constitutes an ‘acquittal’ is not controlled by the form of the action.”56

Consequently, the trial court’s actions pursuant to MCR 6.419(A) and its entry of an

order of acquittal do not control. Although these actions take the form of an acquittal, we

are concerned with the substance of the trial court’s ruling.

         Again, an acquittal for double-jeopardy purposes is a “ruling of the judge,

whatever its label, [that] actually represents a resolution, correct or not, of some or all of

the factual elements of the offense charged.”57 The trial court’s legal error resulted in its

adding an element to the charged offense and requiring the prosecution to provide proof

of that extraneous element. As the Court of Appeals concluded, the trial court did not

resolve or even address any factual element necessary to establish a conviction for

burning other real property. Rather, the substance of the trial court’s ruling was entirely

55
     People v Antonelli (On Rehearing), 66 Mich App 138, 140; 238 NW2d 551 (1975).
56
     People v Mehall, 454 Mich 1, 5; 557 NW2d 110 (1997).
57
     Martin Linen, 430 US at 571 (emphasis added).



                                             19
focused on the extraneous element. Consequently, the trial court’s decision was based on

an error of law unrelated to defendant’s guilt or innocence on the elements of the charged

offense, and thus the trial court’s dismissal of the charge did not constitute an acquittal.58

         Nix misconstrued the definition of acquittal in Martin Linen, stating that “on a

motion for directed verdict, a trial court must, as this trial court did, view the

prosecution’s evidence in the light most favorable to the prosecution. Accordingly, the

trial court cannot make an erroneous factual resolution.”59 As the prosecution argues,

however, a trial court certainly can make an erroneous factual resolution in ruling on a

motion for a directed verdict. The trial court can do so, for instance, when it forgets

about evidence or does not realize that certain evidence can satisfy a factual element.

This is what took place in Smith v Massachusetts, discussed earlier, when the trial court

failed to realize that testimony that the defendant appeared to have a .32 or .38 caliber

revolver was sufficient to establish that the factual element that the barrel of the gun was

shorter than 16 inches.60      This incorrect resolution of a factual element in Smith

constituted an acquittal for the purposes of double jeopardy.

         From this faulty presumption that a trial court cannot make an erroneous factual

resolution, Nix wrongly observed that the phrase “correct or not” from Martin Linen’s

definition of acquittal “refers to all aspects of the trial court’s ultimate legal decision,

58
  Accord United States v Maker, 751 F2d 614, 622 (CA 3, 1984) (holding that a judicial
ruling is an acquittal “only when, in terminating the proceeding, the trial court actually
resolves in favor of the defendant a factual element necessary for a criminal conviction”).
59
     Nix, 453 Mich at 628.
60
     Smith, 543 US at 465.



                                              20
including even cases where the trial court is factually wrong with respect to whether a

particular factor is an element of the charged offense.”61 A court cannot, however, be

factually wrong regarding what makes up the elements of the crime because an erroneous

determination of what constitutes the elements of an offense is a legal error, not a factual

one.62

         Instead, the definition of acquittal in Martin Linen and the phrase “correct or not”

means that it is of no consequence for the purposes of double jeopardy whether the trial

court’s resolution of the factual elements is correct. Nonetheless, this resolution must be

based on at least some of the factual elements of the charged crime. By adding an

extraneous element—that the prosecution needed to prove that the burned building was

not a dwelling—the trial court’s legal error did not involve a resolution of any of the

factual elements of the charged offense, and thus its ruling does not fall within the

definition of acquittal for the purposes of double jeopardy.

         We further conclude that the distinction we have drawn from the relevant United

States Supreme Court decisions is reasonable and constitutionally grounded. Rather than

uniformly determine that any instance in which a trial court enters an order of acquittal

definitively bars retrial, the United States Supreme Court has opted to consistently apply


61
     Nix, 453 Mich at 628.
62
   See United States v Boyle, 469 US 241, 249 n 8; 105 S Ct 687, 83 L Ed 2d 622 (1985)
(“Whether the elements that constitute “reasonable cause” are present in a given situation
is a question of fact, but what elements must be present to constitute “reasonable cause”
is a question of law.”); People v Holtschlag, 471 Mich 1, 4; 684 NW2d 730 (2004)
(“Determining the elements of common-law involuntary manslaughter is a question of
law.”).



                                              21
the definition of acquittal from Martin Linen.63 By doing so the Court has determined

that the labels the trial court used are not controlling and that a resolution must be on the

factual elements to constitute an acquittal. But the line, once crossed, triggers double-

jeopardy protections regardless of the correctness of the trial court’s decision.64

         We believe that the application of the definition of acquittal reflects a balancing of

the public’s interest in having one full and fair opportunity to prosecute a criminal case65

and the interest in protecting a criminal defendant from being subjected “to


63
     See Smith, 543 US at 467-468.
64
   We recognize that the United States Supreme Court has stated that “‘[t]he fact that the
acquittal may result from erroneous evidentiary rulings or erroneous interpretations of
governing legal principles . . . affects the accuracy of that determination but it does not
alter its essential character,’” Smalis, 476 US at 144 n 7, quoting United States v Scott,
437 US 82, 98; 98 S Ct 2187; 57 L Ed 2d 65 (1978), and that “any contention that the
Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is at
odds with the well-established rule that the bar will attach to a preverdict acquittal that is
patently wrong in law,” Smith, 543 US at 473. But we disagree with Justice CAVANAGH
that our position “diminishes” or “minimizes” these statements because they have no
effect on our distinction between an evidentiary error regarding the proof necessary to
establish a factual element and the effect of a legal error in which an extraneous element
is added to the charged offense. Post at 1, 7. Furthermore, these statements are not
inconsistent with our view of the case at hand because they are necessarily made within
the framework of the definition of acquittal established in Martin Linen and the United
States Supreme Court has not cast doubt on the viability of that definition. Additionally,
it is clear that this case does not involve an erroneous evidentiary ruling or an erroneous
interpretation of governing legal principles. The trial court, rather than rightly or
wrongly interpreting the governing legal principles, opted to invent a governing principle,
terminating the trial on a ground unrelated to defendant’s factual guilt or innocence. The
statement from Smith is similarly inapplicable because it was made after the Court had
already concluded that an acquittal had occurred. We do not assert that the Double
Jeopardy Clause is the avenue for correcting the trial court’s error. Instead, because an
“acquittal” did not occur, the prohibition against double jeopardy is not implicated.
65
     See Scott, 437 US at 100.



                                               22
embarrassment, expense and ordeal and compelling him to live in a continuing state of

anxiety and insecurity, as well as enhancing the possibility that even though innocent he

may be found guilty.”66 When considering the application of this definition and the

weighing of these interests, it is reasonable to treat differently cases in which the

resolution was based on the prosecution’s failure to prove something that the law,

properly understood, did not require it to prove. Doing so depends on whether the trial

court actually considered the factual elements of the charged offense. A resolution of the

factual elements, even if erroneous, crosses the established bright line. But a court’s

adding an extraneous element and resolving the case solely on the basis of that added

element prevents any evaluation of the charged crime on the merits and thus completely

thwarts society’s interest in allowing the prosecution one full and fair opportunity to

present its case.67



66
     Green, 355 US at 187-188.
67
     See Maker, 751 F2d at 624, which stated:

                 Our conclusion that an appeal is not barred in this case is consistent
         with the policies underlying the double jeopardy clause. This is not a case
         in which a second trial is permitted “for the purpose of affording the
         prosecution another opportunity to supply evidence which it failed to
         muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98
         S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978). Instead, this is a case in which the
         district court, as the result of a legal error, determined that the government
         could not prove a fact that is not necessary to support a conviction. To
         preclude an appeal in this case would deprive the public “of its valued right
         to ‘one complete opportunity to convict those who have violated its laws.’”
         Scott, 437 U.S. at 100, 98 S.Ct. at 2198 (quoting Arizona v. Washington,
         434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1975)).



                                              23
       Therefore, barring retrial is inappropriate in a case such as this. Because of the

trial court’s legal error, no factual elements of the charged offense were considered, and

as a result the people have not been afforded the opportunity to have their case reviewed

for the sufficiency of the evidence on the factual elements even once. Permitting retrial

to allow such an opportunity hardly depicts “an all-powerful state relentlessly pursuing a

defendant who had either been found not guilty or who had at least insisted on having the

issue of guilt submitted to the first trier of fact.”68 Rather, because the trial court’s

actions fell outside the definition of acquittal, permitting defendant’s retrial does not

frustrate the prohibition against double jeopardy.

                                   IV. CONCLUSION

       We hold that when a trial court grants a defendant’s motion for a directed verdict

on the basis of an error of law that did not resolve any factual element of the charged

offense, the trial court’s ruling does not constitute an acquittal for the purposes of double

jeopardy and retrial is therefore not barred. Accordingly, because the trial court’s actions

here did not constitute an acquittal for the purposes of double jeopardy, we affirm the

judgment of the Court of Appeals and remand the case for further proceedings not

inconsistent with this opinion.
                                                         Brian K. Zahra
                                                         Robert P. Young, Jr.
                                                         Stephen J. Markman
                                                         Mary Beth Kelly


68
  Scott, 437 US at 96; see also id. at 98-99 (holding that that retrial is permitted when the
defendant elects to terminate the trial on a procedural basis unrelated to the defendant’s
factual guilt or innocence).



                                             24
                             STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             No. 141381

LAMAR EVANS,

              Defendant-Appellant.


CAVANAGH, J. (dissenting).


       The issue presented in this case was decided more than a decade ago in People v

Nix, 453 Mich 619; 556 NW2d 866 (1996). In that case, this Court held that an acquittal

for purposes of the Double Jeopardy Clauses of the Michigan and United States

Constitutions occurs when a trial court evaluates the government’s evidence and

determines that it is legally insufficient to sustain a conviction, regardless of whether the

acquittal was based on an “‘egregiously erroneous foundation,’” id. at 630-631 (citation

omitted), and including those cases in which the trial court was incorrect regarding

whether a particular factor is actually an element of the charged offense, id. at 628.

Although Nix was based on an application of United States Supreme Court precedent and

precedent from this Court, today the majority effectively overrules Nix and, in doing so,

diminishes the United States Supreme Court’s directive that “any contention that the

Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is at

odds with the well-established rule that the bar will attach” even “to a preverdict acquittal
that is patently wrong in law.” Smith v Massachusetts, 543 US 462, 473; 125 S Ct 1129;

160 L Ed 2d 914 (2005) (emphasis added). Because Nix is harmonious with established

United States Supreme Court precedent, I respectfully dissent from the majority’s

decision to summarily disregard Nix.

                      I. DOUBLE-JEOPARDY JURISPRUDENCE

       It is axiomatic that under both the state and federal constitutions, a defendant may

not be twice put in jeopardy for the same offense. US Const, Am V; Const 1963, art 1,

§ 15. The underlying focus of the Double Jeopardy Clause is on a defendant’s exposure

to the personal strain, embarrassment, and expense of a criminal trial more than once for

the same offense. See United States v Scott, 437 US 82, 87; 98 S Ct 2187; 57 L Ed 2d 65

(1978), citing Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199

(1957); Smalis v Pennsylvania, 476 US 140, 143 n 4; 106 S Ct 1745; 90 L Ed 2d 116

(1986). Accordingly, the guarantee against double jeopardy “‘protects against a second

prosecution for the same offense after acquittal.’” United States v DiFrancesco, 449 US

117, 129; 101 S Ct 426; 66 L Ed 2d 328 (1980) (citation omitted). Notably, the United

States Supreme Court has explained that “‘the most fundamental rule in the history of

double jeopardy jurisprudence’” is that an acquittal “‘may not be reviewed,’” on error or

otherwise, “‘without putting the defendant twice in jeopardy . . . .’” Sanabria v United

States, 437 US 54, 64; 98 S Ct 2170; 57 L Ed 2d 43 (1978), quoting United States v

Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977) (citation

and quotation marks omitted). Consistent with this notion, an acquittal is “absolute,”

People v Anderson, 409 Mich 474, 483; 295 NW2d 482 (1980), regardless of whether the

acquittal is “based on a jury verdict of not guilty or on a ruling by the [trial] court that the


                                               2
evidence is insufficient to convict . . . .” Scott, 437 US at 91.1 The threshold question in

these types of cases, then, is whether a trial court’s ruling on a defendant’s motion for a

directed verdict was, in fact, an acquittal. Smith, 543 US at 467.

       To determine whether an acquittal actually occurred for purposes of a double-

jeopardy analysis, a reviewing court must “determine whether the ruling of the judge,

whatever its label, actually represents a resolution, correct or not, of some or all of the

factual elements of the offense charged.” Martin Linen, 430 US at 571 (emphasis added).

As the United States Supreme Court has explained, “what matters is that . . . the [trial]

judge ‘evaluated the . . . evidence and determined that it was legally insufficient to

sustain a conviction.’” Smith, 543 US at 469, quoting Martin Linen, 430 US at 572.

Accordingly, an order entering a finding that the evidence was insufficient to sustain a

conviction “meets the definition of acquittal that [the] double-jeopardy cases have



1
  The United States Supreme Court has further elaborated that it has “long held that the
Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-
decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury
verdict,” regardless of whether the judge’s ruling of acquittal comes in a bench trial or a
jury trial. Smith, 543 US at 467 (emphasis added). The Court also explained that there is
a “single exception to the principle that acquittal by judge precludes reexamination of
guilt no less than acquittal by jury”: the prosecution can appeal to reinstate a jury’s
verdict of guilty after a “trial judge (or an appellate court) sets aside that verdict and
enters a judgment of acquittal . . . .” Id. That exception, however, is not applicable in
this case. See, also, DiFrancesco, 449 US at 130 (stating that the Court “necessarily
afford[s] absolute finality to a jury’s verdict of acquittal—no matter how erroneous its
decision”) (citation and quotation marks omitted); Sanabria, 437 US at 64 n 18 (stating
that “[i]t is without constitutional significance that the court entered a judgment of
acquittal rather than directing the jury to bring in a verdict of acquittal or giving it
erroneous instructions that resulted in an acquittal”); cf. People v Ellis, 468 Mich 25; 658
NW2d 142 (2003).



                                             3
consistently used . . . .” Smith, 543 US at 468; see, also, Anderson, 409 Mich at 486; Nix,

453 Mich at 625-627; 630-631.

       Notably, the United States Supreme Court has stated that the “fundamental nature”

of the rule barring review of a verdict of acquittal is “manifested by its explicit extension”

to situations in which an acquittal was based on an incorrect foundation. Sanabria, 437

US at 64 (emphasis added). On the basis of this extension, when a defendant is acquitted

because of a determination that the evidence was insufficient to support a conviction,

“there is no exception permitting retrial,” id. at 75, “even if the legal rulings underlying

the acquittal were erroneous,” id. at 64, and “no matter how ‘egregiously erroneous’. . .

the legal rulings leading to that judgment might be,” id. at 75, quoting Fong Foo v United

States, 369 US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962); see, also, Arizona v Rumsey,

467 US 203, 211; 104 S Ct 2305; 81 L Ed 2d 164 (1984) (explaining that United States

Supreme Court precedent establishes that an “acquittal on the merits bars retrial even if

based on legal error”). Thus, “[t]he status of the trial court’s judgment as an acquittal is

not affected” by a trial court’s legal error in interpreting governing legal principles:

“‘[T]he fact that the acquittal may result from erroneous evidentiary rulings or erroneous

interpretations of governing legal principles . . . affects the accuracy of that determination

but it does not alter its essential character.’” Smalis, 476 US at 144 n 7 (emphasis added;

citation and quotation marks omitted), quoting Scott, 437 US at 98, and citing Sanabria,

437 US 54, and Rumsey, 467 US 203.

       In summary, the United States Supreme Court has repeatedly stated that a trial

court’s “ruling that as a matter of law the State’s evidence is insufficient to establish [the

defendant’s] factual guilt” is a “‘resolution, correct or not, of some or all of the factual


                                              4
elements of the offense charged’” and, therefore, constitutes an acquittal for purposes of

the Double Jeopardy Clause. Smalis, 476 US at 144 & n 6. Further, that an acquittal was

founded on an erroneous legal ruling is irrelevant: the trial court’s judgment of acquittal

based on a finding of insufficient evidence, however erroneous, bars retrial. See id. at

145 n 7; Rumsey, 467 US at 211. Although I welcome the majority’s decision to embrace

policy considerations for the purpose of this appeal, as the United States Supreme Court

has explained, “[w]hat may seem superficially to be a disparity in the rules governing a

defendant’s liability to be tried again is explainable by reference to the underlying

purposes of the Double Jeopardy Clause.” Scott, 437 US at 91. Specifically, the rule

barring retrial after an acquittal is “justified on the ground that, however mistaken the

acquittal may have been, there would be an unacceptably high risk that the Government,

with it superior resources, would wear down a defendant, thereby ‘enhancing the

possibility that even though innocent he may be found guilty.’” DiFrancesco, 449 US at

130 (emphasis added), quoting Green, 355 US at 188.

           II. NIX IS HARMONIOUS WITH ESTABLISHED PRECEDENT

      As the foregoing summary illustrates, the principles articulated in Nix are both

founded on and harmonious with longstanding United States Supreme Court caselaw.

See Nix, 453 Mich at 624-632; see, also, People v Szalma, 487 Mich 708, 727-729; 790

NW2d 662 (2010) (CAVANAGH, J., concurring). Thus, Nix was not, as the majority

asserts, based on faulty presumptions or misconstructions of United States Supreme

Court precedent. Indeed, contrary to the majority’s position, it bears repeating that the

United States Supreme Court “has never held that a trial court’s preverdict acquittal on

the merits may be reversed because of a legal error.” Szalma, 487 Mich at 728 n 1


                                            5
(CAVANAGH, J., concurring). Instead, as I have noted, the Court has repeatedly stated the

opposite, without crafting the distinction that the majority creates today. In fact, the

United States Supreme Court recently reaffirmed the principle that the Double Jeopardy

Clause does not provide an exception for legal errors, even if the preverdict acquittal was

“patently wrong in law.” Smith, 543 US at 473.

      Accordingly, as explained in Nix, it is irrelevant for purposes of the Double

Jeopardy Clause that an acquittal was founded on an erroneous interpretation of a

governing legal principle. Nix, 453 Mich at 626-628, 630-631; see, also, Smalis, 476 US

at 144 n 7. This is so regardless of whether the erroneous interpretation of the governing

legal principle is based on an error in interpreting a statutory requirement or, as in this

case, an error in determining the actual elements necessary to commit an offense.

Szalma, 487 Mich at 728 n 2 (CAVANAGH, J., concurring), citing Rumsey, 467 US at 211.

      Further, it elevates form over substance to make such a distinction, as the majority

does today.   In my view, Rumsey illustrates this point.       In that case, a trial court

misconstrued a statute defining an aggravating circumstance used for determining

whether the death penalty was appropriate. Specifically, the trial court erroneously

agreed with the defendant that the statute required the prosecution to prove beyond a

reasonable doubt that the murder was a “contract-type” killing, rather than a murder

committed during the course of a theft. Rumsey, 467 US at 205-207. Because the trial

judge found that this aggravating circumstance was not present, the defendant’s life was

spared. Id. at 206. Despite the trial court’s error in interpreting the statute, the United

States Supreme Court affirmed the Arizona Supreme Court’s ruling that the defendant

“had effectively been ‘acquitted’ of death at his initial sentencing,” id. at 208, holding


                                            6
that, although the trial court had relied on a misconstruction of the statute defining the

aggravating circumstance, that error of law was of no avail to the prosecution for

purposes of the Double Jeopardy Clause. Id. at 211.2 Although Rumsey addressed the

proper interpretation of the statute’s requirements, as even the majority here concedes,

the trial court in Rumsey required the prosecution to prove something that it was not

otherwise required to prove: that the murder was a contract-type killing.

       In my view, creating a distinction between improperly adding an element to an

offense and misconstruing an actual element of a statute to require the prosecution to

prove something extraneous—both situations in which the trial court, because of a legal

error, technically determined that the government could not prove a fact that was not

necessary to support a conviction—elevates form over substance.             In addition, the

majority’s distinction minimizes the United States Supreme Court’s general directive that

the Double Jeopardy Clause does not provide an exception for legal errors, even if the

acquittal is “patently wrong in law,” Smith, 543 US at 473, and “no matter how




2
   As I have stated before, the error in Rumsey was clearly related to the proper
interpretation of the statute’s requirements, rather than a mere evidentiary error as the
majority purports. Szalma, 487 Mich at 728 n 2 (CAVANAGH, J., concurring). See, also,
Smalis, 476 US at 145 n 8 (explaining that Rumsey involved “an erroneous construction
of the [governing] law”). Further, it bears repeating that “the majority’s discussion of
whether the errors in certain cases should be characterized as evidentiary errors is
irrelevant because . . . the United States Supreme Court has repeatedly stated” that the
Double Jeopardy Clause precludes retrial when there has been an acquittal on the merits
“regardless of either evidentiary errors or erroneous interpretations of governing legal
principles.” Szalma, 487 Mich at 728 n 2 (CAVANAGH, J., concurring).



                                            7
‘egregiously erroneous’ . . . the legal rulings leading to that judgment might be,”

Sanabria, 437 US at 75 (citations omitted).3

       Therefore, I disagree with the majority’s conclusion that an error in interpreting a

statutory requirement should be treated differently from an error in interpreting the

elements necessary for an offense: both errors constitute an erroneous interpretation of a

governing legal principle, and both errors may involve a situation in which the trial

court’s decision was “based upon the prosecution’s failure to prove something that the




3
  In light of the United States Supreme Court’s broad assertion that “any contention that
the Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is
at odds with the well-established rule that the bar will attach to a preverdict acquittal
that is patently wrong in law,” Smith, 543 US at 473 (emphasis added), I disagree with
the majority’s assertion that the Court’s statement in Smith does not apply in this case.
See, also, Sanabria, 437 US at 64 (stating that the “fundamental nature” of the rule
barring review of a verdict of acquittal is “manifested by its explicit extension to
situations where an acquittal is ‘based upon an egregiously erroneous foundation’”)
(emphasis added), quoting Fong Foo, 369 US at 143. Accordingly, the United States
Supreme Court has clearly and emphatically stated that the bar to retrial attaches even
when the acquittal itself is legally wrong or based on an incorrect foundation,
notwithstanding the majority’s assertions to the contrary in this case. See ante at 22 n 64
(stating that Smith does not apply because the Court had already concluded that an
acquittal had occurred and asserting that this case does not involve an erroneous
interpretation of a governing legal principle because the trial court opted to “invent a
governing principle”); see, also, Smith, 543 US at 467-468 (stating that an order entering
a finding that the evidence was insufficient to sustain a conviction “meets the definition
of acquittal that [the] double-jeopardy cases have consistently used: It ‘actually
represents a resolution, correct or not, of some or all of the factual elements of the
offense charged.’”), quoting Martin Linen, 430 US at 571 (emphasis added); Smalis, 476
US at 144 (stating that a “ruling that as a matter of law the State’s evidence is insufficient
to establish [a defendant’s] factual guilt” is an acquittal under the Double Jeopardy
Clause); Anderson, 409 Mich at 486 (same).



                                               8
law, properly understood, did not require it to prove.” Ante at 20; see, also, ante at 21

n 53.4

                       III. NIX IS CONTROLLING PRECEDENT

         Except for the composition of this Court, little has changed since the

aforementioned principles were articulated in Nix well over a decade ago. Yet today the

majority effectively overrules Nix without persuasively explaining why Nix and the

United States Supreme Court decisions on which Nix was based should no longer

control.5 It is therefore clear that the current majority’s rationale is simply based on its

unstated, yet apparent, preference for the approach advanced by the Nix dissent and




4
  The Nix Court is not the only court to hold that it makes no difference for double-
jeopardy purposes whether the trial court ruled that there was insufficient evidence
related to a required element of the offense or whether there was insufficient evidence
related to an erroneously added element. See Carter v State (On Remand), 365 Ark 224,
228-229; 227 SW3d 895 (2006) (holding that, under Smith, regardless of a trial court’s
legal error, the trial court’s determination that there was a lack of evidence on the charged
offense resulted in an acquittal for double jeopardy purposes and, in so holding, rejecting
the state’s argument that Smith was “distinguishable” because, “unlike in Smith, where
the trial judge ruled that proof of a required element of the charged offense was lacking,”
in Carter “the State was required to prove an additional element that the statute [did] not
require”).
5
  This is not the first time that this Court has been asked to reconsider Nix. See, e.g.,
People v Limmer, 461 Mich 974 (2000); People v Robinson, 470 Mich 874 (2004)
(granting leave to appeal to consider whether Nix was “properly decided”), vacated 473
Mich 878 (2005). Thus, this Court has had the opportunity to review the aforementioned
precedents on at least two other occasions, yet decided not to overrule Nix. I would
continue this practice of adhering to Nix because, as noted, Nix is consistent with United
States Supreme Court precedent.




                                             9
United States v Maker, 751 F2d 614 (CA 3, 1984)—approaches that the Nix majority

properly rejected as unpersuasive.6

       Further, I disagree with the majority’s implicit conclusion that Nix, when viewed

in its totality, does not control the outcome of this case. Rather, notwithstanding the

majority’s apparent conclusion to the contrary, Nix addressed the situation presented in

this case when it stated that a trial court’s determination that the evidence is insufficient

to sustain a conviction constitutes an acquittal for double-jeopardy purposes and

“precludes appellate inquiry into [the ruling’s] legal correctness,” Nix, 453 Mich at 627,

regardless of “whether ‘the acquittal was based upon an egregiously erroneous

foundation’ . . . or not,” id. at 631 (citation omitted); see, also, id. at 624-627; Anderson,

409 Mich at 483, 486. Thus, in my view, the majority errs by failing to consider Nix in

its totality and, in selectively quoting Nix, conveniently turns a blind eye to the doctrine

of stare decisis.

       Even assuming arguendo that the majority is correct in classifying selected

portions of Nix as dicta, the majority’s sudden decision to classify those portions of Nix

as such stands in stark contrast to the majority’s treatment of Nix as “controlling”

precedent and “compelling reversal” just two terms ago in a case that considered the

exact issue raised in this appeal. Specifically, in Szalma, the majority explained that “this

Court’s decision in Nix provides that a trial court’s erroneously added element of a crime

6
  Although it is apparent that the majority’s opinion is influenced by Maker, the majority
fails to explain why Maker should now govern despite Nix’s rejection of it more than a
decade ago. Notably, it does not appear that Maker even addressed United States
Supreme Court precedent, such as Sanabria, regarding the effect of legal errors leading to
a judgment of acquittal.



                                             10
does not negate the finality of its directed verdict,” Szalma, 487 Mich at 725, because a

trial court’s “acquittal on the merits of the charged offense is final under the holding of

Nix;” id. at 722; see, also, id. at 726 (stating that “[t]his Court held in . . . Nix that an

acquittal retains its finality . . . even when ‘the trial court is factually wrong with respect

to whether a particular factor is an element of the charged offense’” and the “Court of

Appeals erred by ruling otherwise”), quoting Nix, 453 Mich at 628; Szalma, 487 Mich at

727 (stating that the “trial court’s decision . . . , though premised on an erroneous

understanding of the legal elements of the charged offense, nonetheless constituted . . . a

decision on the sufficiency of the evidence under Nix”). In so stating, the Szalma

majority accurately explained that “Nix holds that such legal error precludes retrial,” id.

at 710, that “Nix squarely compels a reversal,” id., and that “this Court’s decision in Nix

clearly controls the outcome of this case,” id. at 720 n 21. In light of the Szalma

majority’s treatment of Nix as controlling precedent, I find the majority’s newfound

conclusion that Nix is not binding precedent, and its attempts to distinguish Szalma’s

treatment of Nix as such, both contradictory and disingenuous.

                                    IV. CONCLUSION

       The new standard that the majority opinion adopts today effectively overrules Nix

without a persuasive explanation of why Nix and the United States Supreme Court

precedent on which it was founded should no longer control. In obfuscating these

precedents and creating distinctions that simply do not appear to exist, the majority

dismisses the fact that whether a trial court erred in its interpretation of the elements of

the crime is irrelevant: the essential character of an acquittal is not altered, even if the

acquittal results from “erroneous interpretations of governing legal principles . . . .”


                                              11
Smalis, 476 US at 144 n 7 (citations and quotation marks omitted). Because the United

States Supreme Court has rejected “any contention that the Double Jeopardy Clause must

itself . . . leave open a way of correcting legal errors,” Smith, 543 US at 473 (emphasis

added), I dissent from the majority’s decision to summarily disregard Nix and the

controlling precedent on which Nix is based. Accordingly, I would reverse the judgment

of the Court of Appeals.


                                                      Michael F. Cavanagh
                                                      Marilyn Kelly




                                           12
                            STATE OF MICHIGAN

                                   SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                           No. 141381

LAMAR EVANS,

             Defendant-Appellant.


HATHAWAY, J. (dissenting).


      I dissent from the majority’s decision because I disagree with the distinction that

the majority draws between a trial court’s erroneous ruling related to a required element

of an offense and a trial court’s erroneous ruling related to a mistakenly added element of

an offense. The United States Supreme Court has explained that, for purposes of double

jeopardy, a reviewing court must “determine whether the ruling of the judge, whatever its

label, actually represents a resolution, correct or not, of some or all of the factual

elements of the offense charged.”1 Further, I believe that People v Nix, 453 Mich 619;

556 NW2d 866 (1996), controls this case. Accordingly, I would reverse the judgment of

the Court of Appeals.

                                                       Diane M. Hathaway



1
 United States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d
642 (1977).
