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State v. Kiselev

Court of Appeals of North Carolina

May 19, 2015

STATE OF NORTH CAROLINA
v.
ALEKSANDR SERGEYEVICH KISELEV

Heard in the Court of Appeals 4 February 2015.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellee.

DIETZ, Judge. Judges STEELMAN and INMAN concur.

OPINION

Appeal by the State of North Carolina from order entered 2 June 2014 by Judge Tanya T. Wallace in Union County Superior Court, No. 11 CRS 050840.

DIETZ, Judge.

At the close of the evidence in Defendant Aleksandr Sergeyevich Kiselev's criminal trial for driving while impaired, Kiselev moved to dismiss for insufficient evidence. The trial court determined that it needed to review the transcript of certain trial testimony by the arresting officer before ruling on the motion. While waiting for the court reporter to prepare the transcript, the trial court permitted the jury to begin deliberations.

The parties concede that the trial court's decision to take Kiselev's motion under advisement and permit the jury to deliberate was error. By statute, when a defendant moves to dismiss based on insufficient evidence, the trial court " must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed." N.C. Gen. Stat. § 15A-1227(c) (2013).

Shortly after the jury returned a guilty verdict, the court reporter completed preparation of the transcript and the trial court reviewed it. The court then granted Kiselev's motion to dismiss, explaining that the transcript showed the State had not met its burden of proof as a matter of law. The State appealed, and Kiselev moved to dismiss the appeal.

As explained below, double jeopardy prevents the State from appealing the grant of a motion to dismiss for insufficient evidence if it comes before the jury verdict. But the State can appeal that ruling if it comes after the verdict (because, 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). This is why the General Assembly enacted § 15A-1227(c), which prohibits trial courts from reserving judgment on these motions until after the verdict, to the defendant's detriment.

In an earlier case, this Court held that a violation of § 15A-1227(c) is prejudicial if the defendant can show that the trial court would have ruled in his favor had the court ruled at the proper time. See State v. Hernandez, 188 N.C.App. 193, 205, 655 S.E.2d 426, 434 (2008). Kiselev made that showing here; the trial court stated on the record that its ruling turned on what was in the transcript (which would not have changed) and further explained that the ruling should be treated as having been made before the jury returned its verdict.

Consistent with Hernandez, we hold that a trial court's violation of ยง 15A-1227(c) that prejudices a defendant precludes an appeal by the State. Had the trial court complied with the law, no appeal would be possible. Our only remedy for this prejudicial error is to return the parties to the position they would be in absent that error--meaning the State is not permitted to appeal. Accordingly, we dismiss this appeal and let the trial court's ...


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