The opinion of the court was delivered by
In a pretrial ruling in this criminal case, the district court ruled that the defendant could not be charged with violating K.S.A. 2007 Supp. 65-4160(a), a drug severity level 4 felony, for possessing without a prescription a generic form of the prescription drug Lortab, a schedule III drug. The issue before us is whether the district court’s ruling was a judgment of acquittal, which is an order the State cannot appeal, or was an order of dismissal, which is an order the State can appeal. We conclude the order was an order of dismissal because it was issued before jeopardy attached.
Factual and Procedural Background
In December 2007, Chester Roberts, III, was arrested for the unlawful possession of prescription drugs after he was found in possession of a single tablet of generic Lortab, a pain reliever containing acetaminophen and 5 milligrams of hydrocodone bitrate, for which he had no prescription. Under the version of the Uniform Controlled Substances Act in effect at that time, the State charged Roberts with one count of possession of hydrocodone in violation of K.S.A. 2007 Supp. 65-4160(a), a drug severity level 4 felony.
Roberts waived his preliminary hearing and formal arraignment and was bound over for trial. Then, he filed a pretrial motion to dismiss the charge, claiming the State would not be able to present any evidence that hе possessed hydrocodone as a schedule II controlled substance, which he contended was required for a conviction under K.S.A. 2007 Supp. 65-4160(a). He essentially argued that K.S.A. 2007 Supp. 65-4160(a), which criminalizes, in part, the possession of “any opiates, opium or narcotic drugs,” specifically applies to schedule II controlled substances and does not include schedule III “hydrocodone combination products,” such as generic Lortab.
In response, the State did not dispute that Roberts possessed generic Lortab or that generic Lortab falls into schedule III because it is a compound composed of aсetaminophen and a small amount of hydrocodone. In fact, the State’s response to Roberts’
*31
motion to dismiss included a copy of the forensic lab report of the Kansas Bureau of Investigation, which characterized the tested substance as “[hjydrocodone in a schedule III preparation.” The State did disagree with Roberts’ legal argument, however, and asserted that K.S.A. 2007 Supp. 65-4160(a) criminalizes the possession of generic Lortab. (This same issue is being appealed in
State v. Collins,
No. 101,092,
The district court accepted Roberts’ argument and granted the motion to dismiss the felony charges. The district court then considered a motion to amend that the State had filed. In the motion to amend, the State, congruous with its argument that K.S.A. 2007 Supp. 65-4160(a) should be interpreted broadly, sought permission to amend the complaint to change the phrase “possess or have under his control an opiate drug, to-wit: Hydrocodone” into “possess or have under his control an opiate narcotic drug, to-wit: hydrocodone.” The district judge did not permit the State to amend its complaint, stating:
“If the [S]tate wants to amend to a misdemeanor, they’ll have that right. If they want to amend to a felony then the court will not grant the right.
“. . . If you want to refile it as a felony then I suspect another judge will rule on it, or I will rule on it if it comes baсk to me. If you [do not] file it as a misdemeanor, do not think that’s appropriate, then your option is to file it as a felony . . . before a new judge.”
Court of Appeals’ Decision
The State appealed the district court’s order of dismissal under K.S.A. 22-3602(b)(l), which permits the prosecution to take an appeal as a matter of right from “an order dismissing a complaint, information or indictment.” See
State v. Roberts,
No. 100,233,
In response, Roberts argued that (1) the State could not appeal the district court’s dismissal because the court’s order was equivalent to a judgment of acquittаl from which an appeal is barred by *32 K.S.A. 21-3108(l)(b) and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and (2) even if the State’s appeal was permissible, the district court did not err in dismissing tire charge.
With regard to the jurisdiction issue, the Court of Appeals observed that under K.S.A. 21-3108(l)(a), a subsequent prosecution of a defendant is barred if the defendant was formerly prosecuted for the same crime, based on the same facts, if such former prosecution resulted in a conviction, acquittal, or-determination that the evidence was insufficient to warrant a conviction. The Court of Appeals further recognized that a judgment оf acquittal terminates a prosecution and double jeopardy principles bar further proceedings against the defendant for that offense, but jeopardy must have attached for the prosecution to be precluded.
Roberts,
The Court of Appeals noted that a defendant is generally not in jeopardy in a case tried to the district court until the court begins to hear evidence. It then pointed out that, although before dismissing the criminal complaint in the present case the district court made the factual finding that the drug, generic Lortab, was a schedule III controlled substance, the district court heard no witness testimony and ruled “solely based upon Roberts’ motion to dismiss and the State’s response.”
Roberts,
With regard to the merits of the district court’s decision to dismiss the criminal complaint, the Court of Appeals simply affirmed. No legal analysis was provided. The Court of Appeals gave the following succinct holding: “We affirm the district court’s decision of dismissal. The dismissal is not an acquittal; therefore, double jeopardy did not attach.”
Roberts,
This court granted the petition for review filed by Roberts, in which he raises the sоle issue of whether tire State was barred from appealing the district court’s order of dismissal because the order was equivalent to a judgment of acquittal. Roberts contends the district court acquitted him of the charge; therefore, K.S.A. 21- *33 3108(l)(a) and double jeopardy principles would bar the State from appealing tire district court’s decision and from prosecuting Roberts a second time for the same act (possession of hydrocodone).
The defense’s request for dismissal of the charge was granted in Roberts’ favor and affirmed by the Court of Appeals. Therefore, Roberts does not request this court’s review of that issue, and the State did not file a cross-petition for review. Consequently, the underlying merits of this case, i.e., whether the district court erred in dismissing the complaint and in making the legal conclusion that felony possession under K.S.A. 2007 Supp. 65-4160(a) does not include schedule III hydrocodone, are not before this court.
Our jurisdiction arises from K.S.A. 22-3602(e) (petition for review) and K.S.A. 20-3018(b) (same).
Analysis
Roberts frames his argument as one of appellate jurisdiction, arguing the State only has the right to appeal the district court’s pretrial order if it is a dismissal of tire complaint pursuant to K.S.A. 22-3602(b)(l) and the State cannot appeal an acquittal.
Standard of Review
Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in fhe manner prescribed by statutes. See
State v. Legero,
The statute on which the State brought its appeal is K.S.A. 22-3602, which provides, in part:
“(b) Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
*34 (4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1,1993, in any case involving an off-grid crime.” (Emphasis added.)
From the face of Roberts’ motion, which was labeled as a motion to dismiss, and the district court’s order, which was labeled as an order of dismissal, it seems apparent that the State had a right to appeal the decision under K.S.A. 22-3602(b)(l). Roberts argues, however, that the court’s order was the equivalent of a judgment of acquittal rather than an order of dismissal.
Order of Dismissal or Judgment of Acquittal?
The distinction between an order of dismissal and a judgment of acquittal is critical to our resolution of this appeal. While K.S.A. 22-3602(b)(l) grants the State the right to appeal an order dismissing a complaint, information, or indictment, the State does not have the right to appeal a judgment of acquittal.
E.g., State v. Crozier,
Although these principles make it clear that the State cannot appeal from a judgment of acquittal that implicates the Double Jeopardy Clause, the “distinction between a judgment of acquittal or of dismissal is often not easily determined.”
State v. Beerbower,
*35
Rather, as we will discuss, the applicable statutes and cases define an acquittal that cannot be appealed by the State as a judgment that (1) resolves a factual element (2) after jeopardy has attached.
Resolution of Factual Elements
The first aspect of this statement is the requirement that a judgment of acquittal be “
‘a
resolution, correct or not, of some or all of the factual elеments of the offense charged.’ ”
Whorton,
This general statement is supported by the Kansas statute that authorizes judgments of acquittal, K.S.A. 22-3419, which provides in pertinent part:
“(1) The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the *36 prosecution is not granted, the defendant may offer evidence without having reserved the right.” (Emphasis added.)
This court emphasized the requirement imposed by the italicized language in its analysis of whether the оrder at issue in
Whorton,
In deciding the motion, the district court heard counsels’ arguments outside the presence of the jury. The parties stipulated that a total of 14 corporations using as a part of their name “Bi-Agra” and “Association” were in existence and chartered in the state of Kansas. Defense counsel argued that since the individual check drawees, who were endorsed as witnesses, had been stricken from the amended complaint, the State could not prove ownership of the checks in the proper Bi-Agra Association because officers of the 14 various “associations” were not endorsed as material witnesses. The district court granted the defendant’s “motion to dismiss,” stating the charges were not specific enough to allow for an adequate defense.
On appeal, this court toоk note of the contention that the district court based its decision on a review of the checks offered as evidence, as well as the stipulations concerning the existence of numerous associations bearing the name Bi-Agra. The
Whorton
court concluded that the determination of
which
Bi-Agra Association owned the checks involved questions of fact. Consequently, this court concluded that “the trial court, correct or not, did resolve factual issues in the instant case.”
Whorton,
*37 Jeopardy
The second aspect of the definition of а judgment of acquittal— the requirement that jeopardy has attached — is both substantive and temporal. This requirement is not clearly stated in K.S.A. 22-3419. Rather, the only temporal reference in K.S.A. 22-3419 indicates the district court may order the entiy of judgment of acquittal “after the evidence on either side is closed.” Although this statutory language does not explicitly tie into the concept of jeopardy, the concept is implied by the temporal reference because jeopardy protections attach only “when a jury is [ijmpaneled and sworn, or, in a bench trial, when the judge begins to receive evidence.”
Martin Linen Supply Co.,
Yet, despite the statutory reference to the close of evidence, in Whorton, the court determined that an order entered during the testimony of the first trial witness was a judgment of acquittal. The Whorton court acknowledged the language in K.S.A. 22-3419 but noted that legal commentary on the federal counterpart of this statute, Rulе 29(A) of the Federal Rules of Criminal Procedure, has not placed a narrow construction on such language:
“ ‘Despite what appears to be the clear language of the rule, judgment of acquittal may be ordered even before the government has closed its case if the basic facts lead inescapably to a conclusion that the prosecution must fail regardless of whatever evidence may be introduced.’ ” Whorton,225 Kan. at 255 (quoting 2 Wright & Miller, Federal Practice and Procedure: Criminal § 462, p. 244 [1969]).
Further, the court noted, judgments of acquittal have been rendered in federal courts before the close of the prosecution’s case where the government’s opening statement shows it has no case.
Whorton,
Relying on the federal courts’ rationale, the
Whorton
court concluded that the defendant’s motion for judgment of acquittal was timely under the facts despite its coming before the close of either party’s evidence.
Whorton,
*39
The
Whorton
court did not specifically state that jeopardy had to have attached, but this court clarified that requirement in the subsequent case of
Ruden,
In contrast, in
Ruden,
“A main component of thе judgment of acquittal is its prohibition against subsequent prosecutions for the same offense based upon the Fifth Amendment protection against double jeopardy. 8A Moore’s Federal Practice ¶ 29.08 (2d ed.1989). The Kansas cases that have allowed a motion for judgment of acquittal to bar an appeal have involved a situation in which the trial has begun and jeopardy has attached.” Ruden,245 Kan. at 99 .
Then, in stating its holding, the court succinctly concluded: “Because jeopardy had not attached, a judgment of acquittal was not appropriate.”
Ruden,
Roberts’ Arguments
With this background in mind, we turn to the specifics of Roberts’ arguments, which are: (a) The district court’s order of dismissal was the functional equivalent of an acquittal; (b) the Court of Appeals erred in characterizing the district court’s ruling as one *40 based on legal, rather than factual, determinations; and (c) K.S.A. 21-3108(l)(b) prevents a subsequent prosecution in this case so the order must be considered a judgment of acquittal.
a. Equivalent of Acquittal
In the first of these arguments, Roberts suggests that even if jeopardy did not attach, the district court’s order was the “equivalent of acquittal” because the district court resolved factual questions regarding the chemical makeup of the drug that Roberts possessed. A similar argument was rejected by the United States Supreme Court in
Serfass,
In
Serfass,
the Court considered whether a pretrial motion to dismiss an indictment was an appealable order. The Court first explained that under 18 U.S.C. § 3731 (1970), which defined federal appellate jurisdiction in criminal cases, the government had a right to appeal “so long as further prosecution would not be barred by the Double Jeopardy Clause.”
Serfass,
The Supreme Court then considered Serfass’ argument that the ruling was based on evidentiary facts outside of the indictment and was the “ ‘functional equivalent of an acquittal on the merits’ ” and “ ‘constructively jeopardy had attached.’ ”
Serfass,
“The argument is grounded on two basic and interrelated premises. First, petitioner argues that the Court has admonished against the use of ‘technicalitiеs’ in interpreting the Double Jeopardy Clause, and he contends that the normal rule as to the attachment of jeopardy is merely a presumption which is rebuttable in cases where an analysis of the respective interests of the Government and the *41 accused indicates that the policies of the Double Jeopardy Clause would be frustrated by further prosecution. [Citation omitted.] Second, petitioner maintains that the disposition of his motion to dismiss the indictment was, in the circumstances of this case, the ‘functional equivalent of an acquittal on the merits,’ and he concludes that the policies of the Double Jeopardy Clause would in fact be frustrated by further prosecution. [Citation omitted.]” Serfass,420 U.S. at 390 .
The Court rejected both premises and the argument, explaining:
“It is true that we have disparaged ‘rigid, mechanical’ rules in the interpretation of the Double Jeopardy Clause. [Citation omitted.] However, we also observed in that case that ‘the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether tire Double Jeopardy Clause bars retrial.’ [Citation omitted.] Implicit in the latter statement is the premise that the ‘constitutional policies underpinning the Fifth Amendment’s guarantee’ are not implicated before that point in the proсeedings at which ‘jeopardy attaches.’ [Citation omitted.] As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is ‘put to trial before the trier of the facts, whether the trier be a jury or a judge.’ [Citation omitted.] This is by no means a mere technicality, nor is it a ‘rigid, mechanical’ rale. It is, of course, like most legal rales, an attempt to impart content to an abstraction.” Serfass,420 U.S. at 390-91 .
The Court further explained that if a motion to dismiss is granted before trial the defendant is not “ ‘subjected to the hazards of trial and possible conviction’ ” and an appeal by the United States would not mean that the prosecutor would have the opportunity “ ‘to persuade a second trier of fact of the defendant’s guilt after having failed with the first.’ [Citations omitted.]”
Serfass,
According to the Supreme Court, the second premise that the motion to dismiss was the “ ‘functional equivalent of an acquittal on the merits,’ and [Serfass’] conclusion that the policies of the Double Jeopardy Clause would be frustrated by further prosecution in his case need not, in light of the conclusion we reach above, long detain us.”
Serfass,
“[T]he language of cases in whiсh we have held that there can be no appeal from, or further prosecution after, an ‘acquittal’ cannot be divorced from the procedural context in which the action so characterized was taken. [Citation omitted.] The word itself has no talismanic quality for purposes of the Double Jeopardy Clause. Compare United States v. Oppenheimer,242 U.S. 85 , 88[,37 S. Ct. 68 , 69, 61 L. *42 Ed. 161] (1916), with United States v. Barber,219 U.S. 72 , 78[,31 S. Ct. 209 ,55 L. Ed. 99 ] (1911), and United States v. Goldman,277 U.S. 229 , 236-237[,48 S. Ct. 486 ,72 L. Ed. 862 ] (1928). In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to die risk of conviction.” Serfass,420 U.S. at 392 .
Finally, the Court distinguished its prior decision in
United States v. Brewster,
This conclusion undercuts Roberts’ argument, which essentially asserts that meeting the first prong of the definition of “acquittal” is sufficient to bar an appeal. Like the revised federal statute applied in Serfass, the Kansas prohibition against the appeal of a judgment of acquittal is based on double jeopardy considerations. Consequently, die order must meet the second prong as well or there is no bar to the State’s appeal.
That does not mean that the first factor — a determination of the sufficiency of the evidence — is irrelevant, however. As the Supreme Cоurt reiterated after the
Serfass
decision: “[A] defendant is acquitted only when The ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ”
Scott,
b. Characterization as Factual
Even though the order at issue in this appeal was entered before trial, Roberts dismisses the jeopardy aspect and focuses on whether the district court’s order resolved factual elements. Specifically, Roberts asserts that the Court of Appeals improperly сharacterized the district court’s order as resolving only an issue of law, rather than factual issues. Related to this argument, through a notice of additional authority pursuant to Supreme Court Rule 6.09(b) (2010 Kan. Ct. R. Annot. 48), Roberts points us to another Court of Appeals’ decision,
City of Wichita v. Bannon,
We need not sort through this argument, however, because, regardless of whether the district court resolved some or all of the factual elements of the offense, jeopardy had not attached. Roberts’ case had been set for jury trial, but the motion was granted before the trial date. Wе see no indication in the record on appeal that Roberts had waived his right to a juiy trial and, at the time of the motion hearing, the district court did not have jurisdiction to do more than grant or deny the motion to dismiss.
c. K.S.A. 21-3108(l)(b)
Finally, Roberts suggests a different conclusion is compelled in Kansas because the Kansas Legislature has recognized that there can be an acquittal before a trial. He points to K.S.A. 21-3108(l)(b), which bars trying the case “in a subsequent prosecution” if a first attempt “[w]as terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction.” (Emphasis added.)
This provision, which is based on the American Law Institute’s Model Penal Code § 1.09(2) (1985) (adopted May 24, 1962), codifies the principle of res judicata and has its source in the United States Supreme Court’s decision of
United States v. Oppenheimer,
*44
242 U.S.
85,
Clearly, the effect of Oppenheimer and K.S.A. 21-3108(l)(b) is to bar a subsequent prosecution, but that is a different situation from the question of whether double jeopardy principles would bar tire State from challenging a pretrial ruling on appeal. Roberts does not cite any opinion in which a court has held that the Stаte cannot appeal from an order that the State seeks to overturn. There is authority that is contrary to Roberts’ position, however.
Specifically, courts in other jurisdictions that have the same statutory provision have indicated that to avoid the application of res judicata in tire subsequent prosecution, “ ‘a timely amendment of the order of dismissal
or an appeal
from that order was required. Upon [the government’s] failure to take steps to obtain such relief, the order of dismissal became final and subsequent litigation was thereby barred.’ ” (Emphasis added.)
Stephenson,
These decisions are consistent with the
Serfass
holding,
i.e.,
that the right to appeal is impacted only if jeopardy has attached. It is particularly noteworthy that the Court in
Serfass,
as quoted above, cited to
Oppenheimer
in its analysis.
Serfass,
As a result, we conclude that K.S.A. 21-3108(l)(b) does not preclude the State from appealing an order of dismissal if the appeal is otherwise statutorily authorized.
In summary, under the facts of this case where an order of dismissal was entered before trial, meaning before jeopardy had attached, the order was not a judgment of acquittal and the State’s appeal was not barred by the Double Jeopardy Clause.
Judgments of the Court of Appeals and the district court on the issue subject to our review are affirmed.