I. Jury Acquittal

Double jeopardy principles accord absolute finality to a jury acquittal. Indeed, an acquittal is afforded special weight. United States v. DiFrancesco, 449 U.S. 117, 130 (1980); State v. Sanderson, 346 N.C. 669, 676 (1997). The Double Jeopardy Clause prohibits second-guessing an acquittal for any reason, even when a jury returns inconsistent verdicts on the same issue of fact. McElrath v. Georgia, 601 U.S. 87, 97 (2024); State v. Mumford, 364 N.C. 394, 400 (2010). “Accordingly, acquittals are final and unreviewable, even if based in error.” State v. Robinson, 375 N.C. 173, 185 (2020); accord State v. Payne, 256 N.C. App. 572, 587 (2017).

II. Judicial Acquittal

A judicial determination that the State’s evidence is insufficient as a matter of law has the effect of an acquittal. Smith v. Massachusetts, 543 U.S. 462, 467 (2005) (at trial); Burks v. United States, 437 U.S. 1, 18 (1978) (on appeal); State v. Mason, 174 N.C. App. 206, 208 (2005). An acquittal due to insufficient evidence precludes retrial, whether the court’s evaluation was correct or not. Evans v. Michigan, 568 U.S. 313, 320 (2013). In North Carolina, this determination may be made at trial upon a defendant’s motion to dismiss at the close of the State’s evidence. See G.S. 15-173 (ruling has force and effect of a not guilty verdict); G.S. 15A-1227 (timing of motion to dismiss for insufficient evidence). Accordingly, if the trial court grants a defendant’s midtrial motion to dismiss for insufficient evidence, the defendant may not be retried. State v. Morgan, 189 N.C. App. 716, 722 (2008); State v. Murrell, 54 N.C. App. 342, 345 (1981).

A. Exceptions

When, however, a jury returns a guilty verdict and a trial judge or appellate court sets it aside and enters a judgment of acquittal, the State may appeal to reinstate the verdict. Smith v. Massachusetts, 543 U.S. 462, 467 (2005); State v. Kiselev, 241 N.C. App. 144, 148 (2015). Further, a midtrial dismissal not based on insufficiency of evidence does not bar retrial. Smith v. United States, 599 U.S. 236, 253-54 (2023); State v. Priddy, 115 N.C. App. 547, 551 (1994). Accordingly, a defendant may be retried for the same offense despite a prior dismissal based on:

1. A defective criminal pleading; Illinois v. Somerville, 410 U.S. 458, 471 (1973); State v. Whitley, 264 N.C. 742, 745 (1965); State v. Coleman, 253 N.C. 799, 801 (1961); State v. Barnes, 253 N.C. 711, 718 (1961); State v. Goforth, 65 N.C. App. 302, 306 (1983).

2. A variance between pleading and proof. State v. Miller, 271 N.C. 646, 654 (1967); State v. Stinson, 263 N.C. 283, 292 (1965); State v. Chamberlain, 232 N.C. App. 246, 251 (2014); State v. Mason, 174 N.C. App. 206, 208 (2005); State v. Wall, 96 N.C. App. 45, 50 (1989).

III. Implied Acquittal

A. By Conviction of Lesser Included Offense

When a defendant, on trial for a greater offense, is convicted only of a lesser-included offense, s/he is impliedly acquitted and may not be retried for the greater offense. Price v. Georgia, 398 U.S. 323, 329 (1970); State v. Marley, 321 N.C. 415, 424 (1988). An implied acquittal by conviction of a lesser offense requires, however, that a jury reached a final verdict; if the jury hangs on a lesser offense, the defendant may be retried for the greater offense. Blueford v. Arkansas, 566 U.S. 599, 610 (2012); State v. Booker, 306 N.C. 302, 305 (1982); State v. Mays, 158 N.C. App. 563, 576 (2003); State v. Edwards, 150 N.C. App. 544, 549 (2002).

B. State’s Election Rule

North Carolina courts have also recognized an implied acquittal in the “State’s election” rule. Under that rule, a prosecutor’s decision to seek conviction for only some of the offenses charged or for only lesser-included offenses becomes binding once jeopardy has attached. State v. Courtney, 372 N.C. 458, 475 (2019); State v. Cole, 262 N.C. App. 466, 474 (2018); State v. Bissette, 142 N.C. App. 669, 675 (2001). But a prosecutor’s decision to proceed on one theory does not preclude submission to the jury of the same offense under a different theory (assuming both theories are supported by the pleading and by sufficient evidence at trial). State v. Hales, 344 N.C. 419, 423 (1996).

C. Sentencing

The imposition of a particular sentence is not generally regarded as an acquittal of a more severe sentence. Monge v. California, 524 U.S. 721, 729 (1998); State v. Adams, 347 N.C. 48, 61 (1997); State v. Marshburn, 173 N.C. App. 749, 752 (2005); but see State v. Safrit, 145 N.C. App. 541, 554 (2001) (prior acquittal of violent habitual felon status precluded retrial based on same prior felony convictions). A defendant who has been sentenced to life in a capital proceeding, however, may not be sentenced to death for the same offense in a later proceeding. Bullington v. Missouri, 451 U.S. 430, 438 (1981); State v. Robinson, 375 N.C. 173, 186 (2020).