On September 22, 2008, Detroit Police officers arrested Lamar Evans after they saw him running away from a burning house; he was carrying a gasoline can. An arson investigator determined that a flammable liquid had been used to ignite the fire. The investigator noted that the house was vacant and lacked gas, electricity or water service. The property owner told the police that he was in the process of purchasing the house, which needed repairs, and that he and his family had moved some belongings into the house.
Evans was charged with the burning of real property under MCL 750.73, which states, “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.” Another section of the statute applies to arson of a “dwelling house,” which is punishable by up to 20 years in prison. MCL 750.72.
At the close of the prosecution’s proofs at trial, defense counsel moved for a directed verdict of acquittal, noting that MCL 750.73 pertained to the burning of real property other than a “dwelling house,” and arguing that the prosecution had not established that the building at issue was not a dwelling. The trial court granted the motion, saying that “The testimony was this was a dwelling house” and that therefore, Evans could not be convicted under MCL 750.73.
The prosecutor appealed as of right to the Court of Appeals, arguing that the trial court erred in concluding that, to convict a defendant of arson of real property, the prosecution must prove that the building was not a dwelling. The prosecutor also contended that double jeopardy principles do not bar Evans’ retrial. Evans conceded that the trial court erred, but asserted that retrial was barred under People v Nix, 453 Mich 619 (1996), in which the Michigan Supreme Court held that the correctness of the trial court’s ruling is irrelevant for the purposes of double jeopardy analysis.
In a published opinion, the Court of Appeals reversed the trial court and remanded the case for retrial. The appellate court noted that, in Nix, a majority of the Supreme Court said that whether a trial court’s decision constitutes a verdict of acquittal depends on ‘“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.”’ But the Nix majority added that its interpretation of the phrase “correct or not” was dicta – observations that were not binding on future courts – because it was unclear whether the dismissal in that case was premised on the prosecution’s failure to establish a nonelement of an offense. The Court of Appeals also took note of another Court of Appeals case, People v Howard, in which the majority criticized the Nix “correct or not” interpretation: “Thus a double jeopardy bar would prevent retrial of a defendant acquitted by a judge who concluded that the offense charged had as one of its elements that the moon is made of green cheese and that, the prosecutor having failed to prevent [sic] any evidence to that effect, a directed verdict was required. To state such a result is to show the deficiencies of the rule that would even arguably allow it.” In Evans’ case, the Court of Appeals concluded that double jeopardy does not bar retrial because a finding of no proof on a non-element of the offense is not an acquittal. Evans appeals.